Attachment: 8-K


Document
Execution Version
Exhibit 10.1

BOFA SECURITIES, INC.
BANK OF AMERICA, N.A.
One Bryant Park
New York, NY 10036

CITIZENS BANK, N.A.
28 State Street
Boston, MA 02109

MUFG
1221 Avenue of the Americas
6th Floor
New York, NY 10020
 
SUNTRUST ROBINSON HUMPHREY, INC.
TRUIST BANK
3333 Peachtree Rd.
10th Floor, South Tower
Atlanta, GA 30326
WELLS FARGO SECURITIES, LLC
WELLS FARGO BANK, N.A.
550 South Tryon Street
Charlotte, NC 28202

BANK OF MONTREAL
BMO CAPITAL MARKETS CORP.
3 Times Square
New York, NY 10036
 
SANTANDER BANK, N.A.
75 State Street
Boston, MA 02019
KEYBANK NATIONAL ASSOCIATION
KEYBANC CAPITAL MARKETS INC.
127 Public Square
Cleveland, OH 44114
REGIONS CAPITAL MARKETS, A DIVISION OF
REGIONS BANK
615 South College Street
Charlotte, NC 28202

 
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
DEUTSCHE BANK AG NEW YORK BRANCH
DEUTSCHE BANK SECURITIES INC.
60 Wall Street
New York, NY 10005
 
FIFTH THIRD BANK, NATIONAL ASSOCIATION
142 West 57th Street
Suite 1600
New York, NY 10019


June 26, 2020
WEX Inc.
97 Darling Avenue
South Portland, ME 04106
Attention: Roberto Simon, Hilary A. Rapkin, Michael Thomas and Frank Douglass
Project Summit
Second Amended and Restated Commitment Letter
Ladies and Gentlemen:
WEX Inc. (“you” or the “Company”) has advised Bank of America, N.A. (“Bank of America”), BofA Securities, Inc. (or any of its designated affiliates, “BofA Securities”), Citizens Bank, N.A. (“Citizens”), MUFG (as defined below), SunTrust Robinson Humphrey, Inc. (“STRH”), Truist Bank (“Truist Bank”), Wells Fargo Securities, LLC (“Wells Fargo Securities”), Wells Fargo Bank, N.A. (“Wells Fargo Bank”), Bank of Montreal (“Bank of Montreal”), BMO Capital Markets Corp. (“BMO”), Santander Bank, N.A. (“Santander”), KeyBank National Association (“KeyBank”), KeyBanc Capital Markets Inc. (“KBCM”), Regions Capital Markets, a division of Regions Bank (“Regions”), Deutsche Bank AG Cayman Islands Branch (“DBCI”), Deutsche Bank AG New York Branch (“DBNY”), Deutsche Bank Securities Inc. (“DBSI”) and Fifth Third Bank, National Association (“Fifth Third” and, together with Bank of America, BofA Securities, Citizens, MUFG, STRH, Truist Bank, Wells Fargo Securities, Wells Fargo Bank, Bank of Montreal, BMO, Santander, KeyBank, KBCM, Regions, DBCI, DBNY and DBSI, the “Commitment Parties”, “we” or “us”) that you intend to acquire (the “Acquisition”) directly or indirectly, the target identified to us as “Everest” (the “Everest Target”) and the target identified to us as






“Olympus” (the “Olympus Target” and together with the Everest Target, the “Acquired Business”). The Acquisition will be effected through the acquisition of shares of each of the Olympus Target and the Everest Target. The Company, the Acquired Business and their respective subsidiaries are sometimes collectively referred to herein as the “Companies”. “MUFG” means MUFG Union Bank, N.A., MUFG Bank, Ltd., MUFG Securities Americas Inc. and/or any other affiliates or subsidiaries as they collectively deem appropriate to provide the services referred to herein.
You have also advised us that you intend to finance the Acquisition, the refinancing of the Revolving Credit Facility and the Term A-3 Loans (each as defined in the Existing Credit Agreement (as hereinafter defined)) to the extent that the Financial Covenant Amendment Trigger (as hereinafter defined) shall not have occurred (the “Backstop Refinancing”), the costs and expenses related to the Transaction (as hereinafter defined) and the ongoing working capital and other general corporate purposes of the Companies after consummation of the Acquisition from the following sources: (a) $2,496 million (as may be reduced as expressly provided below) in senior secured credit facilities of the Borrowers (as hereinafter defined) (collectively, the “Senior Credit Facilities”) comprised of (i) a term loan B facility of $1,676 million (as may be reduced as expressly provided below) (the “Term Loan Facility”), comprised of $752 million to fund the Transaction (the “Acquisition Term Loans”) and $924 million to be used to refinance the Term A-3 Loans to the extent that the Financial Covenant Amendment Trigger shall not have occurred (the “TLA Backstop Term Loans”), and (ii) to the extent that the Financial Covenant Amendment Trigger shall not have occurred, a revolving credit facility of $820.0 million (the “Revolving Credit Facility”), (b) an amount equal to $600 million in gross proceeds from the issuance and sale by the Company of senior secured notes (the “Notes”) or, if the Notes are not issued and sold on or prior to the date of consummation of the Acquisition, an amount equal to $600 million in senior secured bridge loans (the “Bridge Loans” and together with any Rollover Loans and Exchange Notes (each, as defined in Annex II-A hereto), the “Bridge Facility” and, collectively with the Senior Credit Facilities, the “Facilities”) made available to the Company as interim financing to the Permanent Securities (as defined in Annex II-A hereto) in each case of this clause (b), less the aggregate amount of gross proceeds of Permanent Securities received by the Company since the date of execution of this Commitment Letter, (c) the issuance of common stock (the “Equity Issuance”) of the Company as part of the consideration for the Acquisition in accordance with the Share Purchase Agreement, dated as of January 24, 2020, relating to the Acquisition among the Everest Target, the Olympus Target, Travelport Limited, Toro Private Holdings I, Ltd., the Everest Sellers named therein, the Olympus Sellers named therein (together with Travelport Limited, Toro Private Holdings I, Ltd. and the Everest Sellers, the “Sellers”) and WEX Inc. (the “Acquisition Agreement”) and (d) to the extent consummated, any Additional Equity Issuance (as defined herein). The Acquisition, the entering into and initial funding of the Facilities and all related transactions are hereinafter collectively referred to as the “Transaction”. The date of consummation of the Acquisition is referred to herein as the “Closing Date.”
You have also advised us that in connection with the Transaction, you have sought and obtained amendments to the Financial Covenants (as defined in the Existing Credit Agreement), as set forth in the Ninth Amendment to the Existing Credit Agreement, dated the date hereof (the “Financial Covenant Amendment”).
The parties hereto acknowledge and agree that this Second Amended and Restated Commitment Letter supersedes and replaces in all respects the Amended and Restated Commitment Letter (the “First A&R Commitment Letter”) dated as of February 10, 2020 (the “First A&R Signing Date”) by and among you and us, which in turn superseded and replaced in all respects the Commitment Letter (the “Original Commitment Letter”) dated as of January 24, 2020 (the “Original Signing Date”) by and among you, Bank of America and BofA Securities. However, the parties acknowledge and agree

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that, except to the extent contemplated hereby, this Commitment Letter does not constitute a novation or termination of your or our obligations or liabilities under the First A&R Commitment Letter or the Original Commitment Letter, as in effect prior to the date hereof.
1.Commitments. In connection with the foregoing, (a) Bank of America is pleased to advise you of its commitment to provide 100% of the Revolving Credit Facility and the TLA Backstop Loans (in such capacity, the “Backstop Lender”), (b)(i) Bank of America is pleased to advise you of its commitment to provide 40.0% of the Acquisition Term Loans, (ii) Citizens is pleased to advise you of its commitment to provide 10.5% of the Acquisition Term Loans, (iii) MUFG is pleased to advise you of its commitment to provide 10.5% of the Acquisition Term Loans, (iv) Truist Bank is pleased to advise you of its commitment to provide 9.5% of the Acquisition Term Loans, (v) Wells Fargo Bank is pleased to advise you of its commitment to provide 9.0% of the Acquisition Term Loans, (vi) Bank of Montreal is pleased to advise you of its commitment to provide 6.0% of the Acquisition Term Loans, (vii) Santander is pleased to advise you of its commitment to provide 6.0% of the Acquisition Term Loans, (viii) KeyBank is pleased to advise you of its commitment to provide 3.5% of the Acquisition Term Loans, (ix) Regions is pleased to advise you of its commitment to provide 2.0% of the Acquisition Term Loans, (x) DBNY is pleased to advise you of its commitment to provide 1.5% of the Acquisition Term Loans and (xi) Fifth Third is pleased to advise you of its commitment to provide 1.5% of the Acquisition Term Loans (each, in such capacity, an “Initial Senior Lender” and collectively, the “Initial Senior Lenders”), subject only to the satisfaction of the conditions set forth in paragraph 5 below, the conditions in the section entitled “Conditions Precedent to Closing and Initial Funding” in Annex I hereto and the conditions in Annex III hereto) (Annex I and Annex III, collectively, the “Senior Financing Summary of Terms”), (c)  each of BofA Securities, Citizens, MUFG, STRH, Wells Fargo Securities, BMO, Santander, KBCM, Regions, DBSI and Fifth Third are pleased to advise you of their willingness, and you hereby engage each of BofA Securities, Citizens, MUFG, STRH, Wells Fargo Securities, BMO, Santander, KBCM, Regions, DBSI and Fifth Third, to act as joint lead arrangers and joint bookrunning managers (each in such capacity, the “Senior Lead Arranger” and collectively, the “Senior Lead Arrangers”) for the Acquisition Term Loans, and in connection therewith to form a syndicate of lenders for the Acquisition Term Loans (collectively, the “Senior Lenders”) in consultation with you, (d)(i) Bank of America is pleased to advise you of its commitment to provide 40.0% of the Bridge Loans, (ii) Citizens is pleased to advise you of its commitment to provide 10.5% of the Bridge Loans, (iii) MUFG is pleased to advise you of its commitment to provide 10.5% of the Bridge Loans, (iv) Truist Bank is pleased to advise you of its commitment to provide 9.5% of the Bridge Loans, (v) Wells Fargo Bank is pleased to advise you of its commitment to provide 9.0% of the Bridge Loans, (vi) Bank of Montreal is pleased to advise you of its commitment to provide 6.0% of the Bridge Loans, (vii) Santander is pleased to advise you of its commitment to provide 6.0% of the Bridge Loans, (viii) KeyBank is pleased to advise you of its commitment to provide 3.5% of the Bridge Loans, (ix) Regions is pleased to advise you of its commitment to provide 2.0% of the Bridge Loans, (x) DBCI is pleased to advise you of its commitment to provide 1.5% of the Bridge Loans and (xi) Fifth Third is pleased to advise you of its commitment to provide 1.5% of the Bridge Loans (each in such capacity, an “Initial Bridge Lender” and collectively, the “Initial Bridge Lenders” and together with the Initial Senior Lenders, the “Initial Lenders”), subject only to the satisfaction of the conditions set forth in paragraph 5 below, the conditions in the section entitled “Conditions Precedent” in Annex II hereto and the conditions in Annex III hereto) (Annex II and Annex III, collectively, the “Bridge Summary of Terms” and, together with the Senior Financing Summary of Terms, the “Summaries of Terms” and, together with this letter agreement, the “Commitment Letter”), (e) Bank of America is pleased to advise you of its willingness to act as the sole and exclusive administrative agent (in such capacity, the “Bridge Administrative Agent” for the Bridge Facility and (f) each of BofA Securities, Citizens, MUFG, STRH, Wells Fargo Securities, BMO, Santander, KBCM, Regions, DBSI and Fifth Third are also pleased to advise you of their willingness, and you hereby engage

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each of BofA Securities, Citizens, MUFG, STRH, Wells Fargo Securities, BMO, Santander, KBCM, Regions, DBSI and Fifth Third, to act as joint lead arrangers and bookrunning managers (each in such capacity, a “Bridge Lead Arranger” and collectively, the “Bridge Lead Arrangers” and together with the Senior Lead Arrangers, the “Lead Arrangers”) for the Bridge Loans, and in connection therewith to form a syndicate of lenders for the Bridge Loans (collectively, the “Bridge Lenders” and, together with the Senior Lenders, the “Lenders”) in consultation with you. It is understood and agreed that BofA Securities will have “lead left” placement on all marketing materials relating to the Facilities and will perform the duties and exercise the authority customarily performed and exercised by them in such role, including acting as sole manager of the physical books. All capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Summary of Terms.
You agree that no other agents, co-agents, arrangers or bookrunners will be appointed, no other titles will be awarded and no compensation (other than compensation expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid to any Lender in order to obtain its commitment to participate in any of the Facilities unless you and we shall so agree.
Notwithstanding any provision of this Commitment Letter to the contrary, if (x) the Company, the Required Financial Covenant Lenders (as defined in the Existing Credit Agreement) and the Administrative Agent have executed a definitive amendment (the “Amendment Agreement”) with respect to the Financial Covenant Amendment (including as set forth the next paragraph) and all conditions precedent to the effectiveness of the Financial Covenant Amendment, other than the substantially concurrent consummation of the Acquisition and the payment of consent fees, have been satisfied (the “Financial Covenant Amendment Trigger”), (i) the commitments of the Backstop Lender hereunder with respect to the Revolving Credit Facility (but, for the avoidance of doubt, not under the Existing Credit Agreement) shall be automatically and permanently reduced to zero and (ii) the commitments of the Backstop Lender with respect to the TLA Backstop Term Loans shall be reduced to zero (this clause (x)(ii), the “TLA Backstop Commitment Reduction”) or (y) the Company issues common stock (or other equity on terms reasonably acceptable to the Commitment Parties) in addition to the Equity Issuance, the net cash proceeds of which are to be used as consideration for the Acquisition (any such issuance, an “Additional Equity Issuance”) (provided, that the Company may, at its option, elect to deem any such issuance of equity as an Additional Equity Issuance at such earlier time as the Company otherwise enters into a commitment letter or other definitive agreement to issue any such equity on or prior to the Closing Date), the commitments of the Initial Senior Lenders with respect to, at the option of the Company, the Acquisition Term Loans and/or the Bridge Facility, shall be reduced in an aggregate amount equal to the net cash proceeds actually received by the Company from such Additional Equity Issuance (any such reduction with respect to the Acquisition Term Loans, the “Acquisition Term Loan Commitment Reduction” and any such reduction with respect to the Bridge Facility, the “Bridge Commitment Reduction”). Each of the Company and the Backstop Lender acknowledges that as of the date hereof, the Financial Covenant Amendment Trigger has occurred and, as a result, the commitments of the Backstop Lender with respect to the Revolving Credit Facility (but, for the avoidance of doubt, not under the Existing Credit Agreement) and the TLA Backstop Term Loans have been reduced to zero as expressly contemplated above.
2.    Syndication. The Lead Arrangers intend to commence syndication of the Facilities promptly after your acceptance of the terms of this Commitment Letter and the Fee Letter related to the Facilities to one or more financial institutions selected by the Lead Arrangers in consultation with you (but in any event excluding any financial institutions identified in writing by you to the Lead Arrangers prior to the Original Signing Date (“Excluded Institutions”)) that are reasonably acceptable to you (with your consent not to be unreasonably withheld, conditioned or delayed); provided, however, that

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notwithstanding the Lead Arrangers’ right to syndicate the Facilities and receive commitments with respect thereto, (a) except as you otherwise agree, the Initial Lenders shall not be relieved, released or novated from their obligations hereunder (including the obligation to fund the Facilities on the Closing Date) in connection with any syndication, assignment or participation of the Facilities, including their commitments in respect thereof, until after the initial funding under the Facilities on the Closing Date has occurred, (b) no such syndication, assignment or novation shall become effective with respect to all or any portion of the Initial Lenders’ commitments in respect of the Facilities until the initial funding of the Facilities, and (c) unless you otherwise agree in writing, the Initial Lenders shall retain exclusive control over all rights with respect to their commitments hereunder with respect to consents, modifications, supplements, waivers and amendments, until the initial funding of the Facilities on the Closing Date has occurred; provided that, prior to the Closing Date, the Initial Bridge Lenders shall not assign any commitments under the Bridge Facility without your prior written consent if such assignment would result in the Initial Bridge Lenders jointly holding less than 51% of the aggregate principal amount of commitments under the Bridge Facility.
You agree to actively assist, and to use your commercially reasonable efforts to cause the Acquired Business to actively assist, the Lead Arrangers in achieving a syndication of each of the Facilities that is satisfactory to the Lead Arrangers. Such assistance shall include (a) your providing and causing your advisors to provide, and using your commercially reasonable efforts to cause the Acquired Business and its advisors to provide, the Lead Arrangers and the Lenders upon request with all customary information reasonably deemed necessary by the Lead Arrangers to complete such syndication, including, but not limited to, all customary projected financial information of the Companies, (b) your assistance in the preparation of one or more information memoranda with respect to the Facilities in form and substance customary for transactions of this type (each, an “Information Memorandum”) and other customary offering and marketing materials to be used in connection with the syndication of each Facility, (c) until the earlier of (x) 60 days after the Closing Date and (y) the Successful Syndication (as defined in the Fee Letter) of the Facilities (such date, the “Syndication Date”), your using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit materially from your existing lending relationships, (d) your using commercially reasonable efforts to obtain prior to the commencement of the Marketing Period (as hereinafter defined), monitored public corporate credit or family ratings (but not any specific rating or ratings) of the Company after giving effect to the Transaction and ratings of the Term Loan Facility, the Bridge Facility and the Notes from Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc. (“S&P”) (collectively, the “Ratings”), (e) prior to the Syndication Date, your ensuring, and with respect to the Acquired Business, using your commercially reasonable efforts to ensure, that there shall be no competing issues, offerings, placements or arrangements of debt securities or commercial bank or other credit facilities by the Companies (other than (i) the Facilities, including Permanent Securities or other securities issued in lieu of or to refinance the Bridge Facility in whole or in part, (ii) any issuances of debt by WEX Bank in the ordinary course, (iii) overdraft lines, (iv) any unsecured notes issued to finance the Transaction other than as set forth in clause (i) above and/or refinance all or a portion of the Company’s 4.75% Senior Notes due 2023 (the “Additional Unsecured Notes”), (v) any accounts receivable securitization facilities of the Company or its subsidiaries and (vi) up to $760 million of borrowings of revolving loans under the Existing Credit Agreement to finance the Acquisition so long as the amount of the Acquisition Term Loans to be funded on the Closing Date is reduced on a dollar for dollar basis until such amount equals $0), including any renewals or refinancings of any existing debt or, in each case, that, in the reasonable judgment of the Majority Lead Arrangers (as defined in the Fee Letter, except that for purposes of this paragraph, the Majority Lead Arrangers must include BofA Securities), could reasonably be expected to materially and adversely affect the syndication of the Facilities without the prior written consent (not to be unreasonably withheld) of the Majority Lead Arrangers (it being understood that

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ordinary course working capital borrowings under the existing revolving credit facilities of the Companies and any debt permitted to be incurred under the Acquisition Agreement shall be permitted) and (f) prior to the Syndication Date, your otherwise assisting the Lead Arrangers in their syndication efforts, including by making your officers and advisors, and using your commercially reasonable efforts to make the officers and advisors of the Acquired Business, available from time to time to attend and make presentations regarding the business and prospects of the Companies and the Transaction at one or more meetings of prospective Lenders. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter or any other letter agreement or undertaking concerning the financing of the Transaction to the contrary, any of the requirements above (including the obtaining of the Ratings referenced above, and the commencement or completion of any syndication of the Facilities) shall not constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date.
It is understood and agreed that the Lead Arrangers will manage and control all aspects of the syndication of the Facilities in consultation with you, including decisions as to the selection of prospective Lenders and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein, in the Summaries of Terms and in the Fee Letter. It is further understood that the Initial Lenders’ commitments hereunder are not conditioned upon the syndication of, or receipt of commitments in respect of, the Facilities and in no event shall the commencement of successful completion of syndication of the Facilities constitute a condition to availability of the Facilities on the Closing Date.
The parties agree that prior to the commencement of any syndication of the Facilities, the Company and the Lead Arrangers will consult with each other in good faith as to the best permanent financing structure available to the Company given the market conditions at such time (it being understood that the Commitment Parties are not providing commitments with respect to any financing except as expressly set forth herein with respect to the Facilities).
3.    Information Requirements. You hereby represent, warrant and covenant (with respect to Information relating to the Acquired Business, to the best of your knowledge) that (a) all written information, other than Projections (as defined below) and other than information of a general or industry-specific nature, that has been or is hereafter made available to the Lead Arrangers or any of the Lenders by or on behalf of you or any of your representatives or by or on behalf of the Acquired Business or any of its representatives in connection with any aspect of the Transaction (including such information, to the best of your knowledge, relating to the Acquired Business) (the “Information”) is and will be, when furnished, correct in all material respects and does not and will not, when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made (after giving effect to all supplements and updates thereto) and (b) all financial projections concerning the Companies that have been or are hereafter made available to the Lead Arrangers or any of the Lenders by or on behalf of you or any of your representatives or by or on behalf of the Acquired Business or its representatives (the “Projections”) (to the best of your knowledge, in the case of Projections provided by the Acquired Business) have been or will be prepared in good faith based upon reasonable assumptions at the time such Projections were made available to the Lead Arrangers (it being understood and agreed that the Projections are as to future events and are not to be viewed as facts or a guarantee of financial performance or achievement, that the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, and that actual results may differ

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from the Projections and such differences may be material). You agree that if at any time prior to the Closing Date and, if requested by us, for such period thereafter as is necessary to complete the Successful Syndication of the Facilities any of the representations in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement, or cause to be supplemented, the Information and Projections so that such representations will be correct in all material respects at such time. In issuing this commitment and in arranging and syndicating the Facilities, the Commitment Parties are and will be using and relying on the Information and the Projections without independent verification thereof.
You acknowledge that (a) the Commitment Parties on your behalf will make available Information Materials to the proposed syndicate of Lenders by posting the Information, the Projections, the Summary of Terms and any additional summary of terms prepared for distribution to Public Lenders (as hereinafter defined) (collectively, the “Information Materials”) on IntraLinks or another similar electronic system (the “Platform”) and (b) certain prospective Lenders (such Lenders, “Public Lenders”; all other Lenders, “Private Lenders”) may have personnel that do not wish to receive material non-public information (within the meaning of the United States federal securities laws, “MNPI”) with respect to the Companies, their respective affiliates or any other entity, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such entities’ securities. If requested, you will assist us in preparing an additional version of the Information Materials not containing MNPI (the “Public Information Materials”) to be distributed to prospective Public Lenders. It is understood and agreed that the Company will exclude MNPI from the Public Information Materials with respect to the Companies and the Acquisition.
Before distribution of any Information Materials (a) to prospective Private Lenders, you shall provide us with a customary letter authorizing the dissemination of the Information Materials and (b) to prospective Public Lenders, you shall provide us with a customary letter authorizing the dissemination of the Public Information Materials and confirming the absence of MNPI therefrom. In addition, (x) at our request, you shall identify Public Information Materials by clearly and conspicuously marking the same as “PUBLIC”; (y) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent (and its affiliates) shall be entitled to treat any Information Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
You agree that the Lead Arrangers on your behalf may distribute the following documents to all prospective Lenders, unless you advise the Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distributions that such material should only be distributed to prospective Private Lenders: (a) marketing term sheets and administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda, (b) notifications of changes to the terms of the Facilities and (c) other materials intended for prospective Lenders after the initial distribution of the Information Materials, including drafts (approved in writing by the Administrative Agent (or its affiliates)) and final versions of definitive documents with respect to the Facilities. If you advise us that any of the foregoing items should be distributed only to Private Lenders, then the Lead Arrangers will not distribute such materials to Public Lenders without further discussions with you. You agree that Information Materials made available to prospective Public Lenders in accordance with this Commitment Letter shall not contain MNPI.

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4.    Fees and Indemnities.
(a)    You agree to pay the fees set forth in the Fee Letter. You also agree to reimburse the Commitment Parties from time to time on demand for all reasonable out-of-pocket fees and expenses (including, but not limited to, the reasonable fees, disbursements and other charges of Cahill Gordon & Reindel LLP, as counsel to the Lead Arrangers and the Administrative Agents, and of any special and local counsel to the Lenders retained by the Lead Arrangers and due diligence expenses) incurred in connection with the Facilities, the syndication thereof, the preparation of the Credit Documentation therefor and the other transactions contemplated hereby, whether or not the Closing Date occurs or any Credit Documentation is executed and delivered or any extensions of credit are made under the Facilities. You acknowledge that certain Commitment Parties may receive a benefit, including without limitation, a discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us including, without limitation, fees paid pursuant hereto.
(b)    You also agree to indemnify and hold harmless each of the Commitment Parties, each other Lender and each of their affiliates, successors and assigns and their respective officers, directors, employees, agents, advisors and other representatives (each, an “Indemnified Party”) from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and expenses (including, without limitation, the reasonable fees, disbursements and other charges of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (a) any aspect of the Transaction or any similar transaction and any of the other transactions contemplated thereby or (b) the Facilities and any other financings, or any use made or proposed to be made with the proceeds thereof (in all cases, whether or not caused or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnified Party), except to the extent such claim, damage, loss, liability or expense (i) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from (A) such Indemnified Party’s gross negligence or willful misconduct or (B) a material breach by such Indemnified Party of its obligations under this Commitment Letter or (ii) arises from a proceeding by an Indemnified Party against an Indemnified Party (other than an action (X) involving alleged conduct by you or any of your affiliates or (Y) against an arranger or administrative agent in its capacity as such). In the case of any claim, litigation, investigation or proceeding (any of the foregoing, a “Proceeding”) to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such Proceeding is brought by you, your equity holders or creditors or an Indemnified Party or any other person, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Transaction is consummated. You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you, the Acquired Business or your or its subsidiaries or affiliates or to your or their respective equity holders or creditors or any other person arising out of, related to or in connection with any aspect of the Transaction, except to the extent of direct (as opposed to special, indirect, consequential or punitive) damages determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. It is further agreed that the Commitment Parties shall only have liability to you (as opposed to any other person), and that the Commitment Parties shall be severally liable solely in respect of their respective commitments to the Facilities, on a several, and not joint, basis with any other Lender. Notwithstanding any other provision of this Commitment Letter, no Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic telecommunications or other information transmission systems, other than for direct, actual damages resulting from the gross negligence or willful misconduct of such Indemnified Party as determined by a final, non-appealable

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judgment of a court of competent jurisdiction. You shall not, without the prior written consent of an Indemnified Party (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened Proceeding against an Indemnified Party in respect of which indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability or claims that are the subject matter of such Proceeding and (ii) does not include any statement as to any admission.
5.    Conditions to Financing. The commitments of the Initial Lenders in respect of the Facilities and the undertaking of the Lead Arrangers to provide the services described herein are subject solely to the satisfaction (or waiver by the Commitment Parties) of each of the following conditions precedent: (a) you shall have accepted the separate second amended and restated fee letter addressed to you dated the date hereof from the Commitment Parties (the “Fee Letter”) as provided therein for the Facilities; (b) the execution and delivery by the Borrowers and the Guarantors (provided that Guarantors that relate to the Acquired Business shall only be required to execute and deliver any documentation substantially simultaneously with the consummation of the Acquisition) of definitive documentation with respect to each Facility, which shall (i) be consistent with this Commitment Letter and the Fee Letter, (ii) be subject in all respects to the Funds Certain Provisions (as defined below) and (iii) give effect to the Senior Facilities Documentation Standard (as defined in Annex I) and the Bridge Documentation Standard (as defined in Annex II) (the “Credit Documentation”), as applicable; and (c) the satisfaction of each of the conditions set forth in Annex III hereto; and upon satisfaction (or waiver by the Commitment Parties) of such conditions, the initial funding of the Facilities shall occur.
Notwithstanding anything in this Commitment Letter, the Fee Letter, the Credit Documentation or any other letter agreement or other undertaking concerning the financing of the Transaction to the contrary, (i) without limiting clause (ii) below, the only representations relating to the Acquired Business, its subsidiaries and its businesses the accuracy of which shall be a condition to the availability of the Facilities on the Closing Date shall be the representations made by or with respect to the Acquired Business and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders (in their capacities as such), but only to the extent that you have the right to terminate your obligations under the Acquisition Agreement, or to decline to consummate the Acquisition pursuant to the Acquisition Agreement (as hereinafter defined), as a result of a breach of such representations in the Acquisition Agreement (to such extent, the “Acquisition Agreement Representations”) and (ii) the only representations made by the Borrowers and the Guarantors the accuracy of which shall be a condition to the availability of the Facilities on the Closing Date shall be the Specified Representations (as hereinafter defined). For purposes hereof, “Specified Representations” means the representations and warranties of the Borrowers set forth in Sections 5.01(a), 5.01(b)(ii), 5.02 (other than clauses (b) and (c) thereof), 5.04, 5.14, 5.20(a), 5.23(a) and 5.24 (solely with respect to the use of proceeds on the Closing Date), in each case, of the Existing Credit Agreement (it being understood that any applicable requirements of Section 6.13 of the Existing Credit Agreement shall be required to be complied with substantially concurrently with the consummation of the Acquisition on the Closing Date with respect to subsidiaries organized in, or collateral located in, the United States that are a part of the Acquired Business; provided that to the extent any security interest in the intended collateral for the Senior Credit Facilities (other than any collateral the security interest in which may be perfected by the filing of a UCC financing statement in the applicable UCC filing office or the delivery of certificates evidencing equity interests in material domestic wholly owned subsidiaries of the Acquired Business (except for any such subsidiaries of the Acquired Business with respect to which the Company has not received such certificates from the Acquired Business after use of commercially reasonable efforts to obtain such certificates)) is not provided on the Closing Date after your use of commercially reasonable efforts to do so without undue burden or expense, the provision of such perfected security interest(s) shall not constitute a condition

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precedent to the availability of the Senior Credit Facilities on the Closing Date but shall be required to be delivered after the Closing Date pursuant to any applicable requirements of Section 6.13 of the Existing Credit Agreement). To the extent any security interest in the intended collateral for the Bridge Facility is not provided on the Closing Date after your use of commercially reasonable efforts to do so without undue burden or expense, the provision of such perfected security interest(s) shall not constitute a condition precedent to the availability of the Bridge Facilities on the Closing Date but shall be required to be delivered after the Closing Date pursuant to arrangements and timing to be mutually agreed between the Company and the Bridge Administrative Agent. The provisions of this paragraph are referred to herein as the “Funds Certain Provisions”.
6.    Confidentiality and Other Obligations. This Commitment Letter and the Fee Letter and the contents hereof and thereof are confidential and may not be disclosed in whole or in part to any person or entity without the prior written consent of the Commitment Parties except (i) this Commitment Letter and the Fee Letter may be disclosed (A) on a confidential basis to your directors, officers, employees, accountants, attorneys and other representatives and professional advisors who need to know such information in connection with the Transaction and are informed of the confidential nature of such information, (B) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law or stock exchange requirement or compulsory legal process (in which case you agree to inform the Commitment Parties promptly thereof prior to such disclosure to the extent permitted by applicable law), and (C) on a confidential basis to the directors, officers, employees, accountants, attorneys and other representatives and professional advisors of the Sellers and the Acquired Business; provided that the Fee Letter is redacted in a manner reasonably satisfactory to the Commitment Parties, (ii) Annex I and Annex II and the existence of this Commitment Letter and the Fee Letter (but not the contents of the Commitment Letter and the Fee Letter) may be disclosed to Moody’s, S&P and any other rating agency on a confidential basis, (iii) the aggregate amount of the fees (including upfront fees and original issue discount) payable under the Fee Letter and otherwise in connection with the Transaction may be disclosed as part of generic disclosure regarding sources and uses for closing of the Transaction (but without disclosing any specific fees, market flex or other economic terms set forth therein or to whom such fees or other amounts are owed), (iv) the Commitment Letter and the Fee Letter may be disclosed on a confidential basis to your auditors for customary accounting purposes, including accounting for deferred financing costs, (v) you may disclose the Commitment Letter (but not the Fee Letter) and its contents in any information memorandum or syndication distribution, as well as in any proxy statement or other public filing relating to the Acquisition or the Facilities, and (vi) the Commitment Letter and Fee Letter may be disclosed to a court, tribunal or any other applicable administrative agency or judicial authority in connection with the enforcement of your rights hereunder (in which case you agree to inform the Commitment Parties promptly thereof prior to such disclosure to the extent permitted by applicable law).
The Commitment Parties shall use all confidential information provided to them by or on behalf of you hereunder solely for the purpose of providing the services which are the subject of this letter agreement and otherwise in connection with the Transactions and shall treat confidentially all such information; provided, however, that nothing herein shall prevent the Commitment Parties from disclosing any such information (i) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case the Commitment Parties agree to inform you promptly thereof to the extent not prohibited by law, rule or regulation), (ii) upon the request or demand of any regulatory or self-regulatory authority having jurisdiction over the Commitment Parties or any of their respective affiliates, (iii) to the extent that such information becomes publicly available other than by reason of disclosure in violation of this agreement by the Commitment Parties, (iv) to the Commitment Parties’ affiliates,

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employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Transactions and are informed of the confidential nature of such information, (v) for purposes of establishing a “due diligence” defense, (vi) to the extent that such information is received by the Commitment Parties from a third party that is not to the Commitment Parties’ knowledge subject to confidentiality obligations to you, (vii) to the extent that such information is independently developed by the Commitment Parties, (viii) to potential Lenders, participants, assignees or any direct or indirect contractual counterparties to any swap or derivative transaction relating to you or your obligations under the Facilities, in each case, who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph or as otherwise reasonably acceptable to you and each Commitment Party, including as may be agreed in any confidential information memorandum or other marketing material), (ix) to Moody’s and S&P and to Bloomberg, LSTA and similar market data collectors with respect to the syndicated lending industry; provided that such information is limited to Annex I and Annex II and is supplied only on a confidential basis or (x) with your prior written consent. This paragraph shall terminate on the earlier of (a) the initial funding under the Facilities and (b) the second anniversary of the Original Signing Date.
You acknowledge that the Commitment Parties or their affiliates may be providing financing or other services to parties whose interests may conflict with yours. The Commitment Parties agree that they will not furnish confidential information obtained from you to any of their other customers and will treat confidential information relating to the Companies and their respective affiliates with the same degree of care as they treat their own confidential information. The Commitment Parties further advise you that they will not make available to you confidential information that they have obtained or may obtain from any other customer.
In connection with all aspects of each transaction contemplated by this Commitment Letter, you acknowledge and agree, and acknowledge your affiliates’ understanding, that (i) the Facilities and any related arranging or other services described in this Commitment Letter is an arm’s-length commercial transaction between you and your affiliates, on the one hand, and the Commitment Parties, on the other hand, (ii) the Commitment Parties have not provided any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby and you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, (iii) you are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby, (iv) in connection with each transaction contemplated hereby and the process leading to such transaction, each of the Commitment Parties has been, is, and will be acting solely as a principal and has not been, is not, and will not be acting as an advisor, agent or fiduciary, for you or any of your affiliates, stockholders, creditors or employees or any other party, (v) the Commitment Parties have not assumed and will not assume an advisory, agency or fiduciary responsibility in your or your affiliates’ favor with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether any of the Commitment Parties has advised or is currently advising you or your affiliates on other matters) and the Commitment Parties have no obligation to you or your affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth in this Commitment Letter and (vi) the Commitment Parties and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from yours and those of your affiliates, and the Commitment Parties have no obligation to disclose any of such interests to you or your affiliates. To the fullest extent permitted by law, you hereby waive and release any claims that you may have against the Commitment Parties with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by this Commitment Letter.

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The Commitment Parties hereby notify you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “U.S.A. Patriot Act”) and the requirements of 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), each of them is required to obtain, verify and record information that identifies the Borrowers and the Guarantors, which information includes the name and address of such persons and other information that will allow the Commitment Parties, as applicable, to identify such persons in accordance with the U.S.A. Patriot Act and the Beneficial Ownership Regulation.
7.    Survival of Obligations. The provisions of Sections 2, 3, 4, 6 (except as provided in Section 6) and 8 shall remain in full force and effect regardless of whether any Credit Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of the Commitment Parties hereunder, except that the provisions of paragraphs 2 and 3 shall not survive if the commitments and undertakings of the Commitment Parties are terminated prior to the effectiveness of the Facilities.
8.    Miscellaneous. This Commitment Letter and the Fee Letter may be executed in multiple counterparts and by different parties hereto in separate counterparts, all of which, taken together, shall constitute an original. Delivery of an executed counterpart of a signature page to this Commitment Letter or the Fee Letter by telecopier, facsimile or other electronic transmission (e.g., a “pdf” or “tiff”) shall be effective as delivery of a manually executed counterpart thereof. Headings are for convenience of reference only and shall not affect the construction of, or be taken into consideration when interpreting, this Commitment Letter or the Fee Letter.
This Commitment Letter and the Fee Letter shall be governed by, and construed in accordance with, the laws of the State of New York; provided that (a) the interpretation of “Material Adverse Effect”, and the determination whether a Material Adverse Effect has occurred, (b) the determination whether the Acquisition has been consummated in all material respects in accordance with the terms of the Acquisition Agreement and (c) the determination of whether as a result of any inaccuracy of any Acquisition Agreement Representation you have the right to terminate your obligations under the Acquisition Agreement, or to decline to consummate the Acquisition pursuant to the Acquisition Agreement, shall, in each case, be governed by and construed in accordance with English law without giving effect to any choice or conflict of law provision or rule (whether of England or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than England. Each party hereto hereby irrevocably waives any and all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Commitment Letter, the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby or the actions of the Commitment Parties in the negotiation, performance or enforcement hereof. Each party hereto hereby irrevocably and unconditionally submits to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in the Borough of Manhattan in New York City in respect of any suit, action or proceeding arising out of or relating to the provisions of this Commitment Letter, the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby and irrevocably agrees that all claims in respect of any such suit, action or proceeding shall be heard and determined in any such court. The parties hereto agree that service of any process, summons, notice or document by registered mail addressed to you shall be effective service of process against you for any suit, action or proceeding relating to any such dispute. Each party hereto waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceedings brought in any such court, and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. A final

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judgment in any such suit, action or proceeding brought in any such court may be enforced in any other courts to whose jurisdiction you are or may be subject by suit upon judgment.
No party has been authorized by the Commitment Parties to make any oral or written statements that are inconsistent with this Commitment Letter. Neither this Commitment Letter (including the attachments hereto) nor the Fee Letter may be amended or any term or provision hereof or thereof waived or modified except by an instrument in writing signed by each of the parties hereto.
This Commitment Letter may not be assigned by you without our prior written consent (and any purported assignment without such consent will be null and void), is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and the Indemnified Parties).
Please indicate your acceptance of the terms of the Facilities set forth in this Commitment Letter and the Fee Letter by returning to us executed counterparts of this Commitment Letter and the Fee Letter not later than 11:59 p.m. (New York City time) on June 26, 2020, whereupon the undertakings of the parties with respect to the Facilities shall become effective to the extent and in the manner provided hereby. This offer shall terminate with respect to the Facilities if not so accepted by you at or prior to that time. Thereafter, all accepted commitments and undertakings of the Commitment Parties hereunder will expire on the earliest of (a) 11:59 p.m. (New York City time) on the date that is two business days following the Outside Date (as defined in the Acquisition Agreement as in effect on January 24, 2020), (b) the closing of the Acquisition without the use of the Facilities and (c) the termination of the Acquisition Agreement in accordance with its terms (such earliest date, the “Termination Date”). In addition, the commitments of the Commitment Parties shall be terminated or reduced as expressly provided in accordance with the terms of the third paragraph of Section 1 above. You may terminate or reduce the commitments of the Initial Lenders under this Commitment Letter (in whole or in part at any time and from time to time) in respect of the Term Loan Facility (solely with respect to the Acquisition Term Loans) and/or the Bridge Facility; provided that any such commitment termination or reduction will reduce the commitments of each Initial Lender in respect of the Term Loan Facility and/or Bridge Facility, as applicable, on a pro rata basis.
[The remainder of this page intentionally left blank.]


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We are pleased to have the opportunity to work with you in connection with this important financing.
Very truly yours,
BANK OF AMERICA, N.A.
By:
/s/ Jeff Piercy    
Name: Jeff Piercy
Title: Director
BOFA SECURITIES, INC.
By:
/s/ Jeff Piercy    
Name: Jeff Piercy
Title: Director
  

Signature Page to Project Summit Commitment Letter



CITIZENS BANK, N.A.

By:    /s/ Drew Galloway            
Name: Drew Galloway
Title: Vice President
  

Signature Page to Project Summit Commitment Letter



MUFG BANK, LTD.

By:    /s/ James Gorman            
Name: James Gorman
Title: Managing Director

Signature Page to Project Summit Commitment Letter



SUNTRUST ROBINSON HUMPHREY, INC.

By:    /s/ Tim O’Leary                
Name: Tim O’Leary
Title:    Managing Director

TRUIST BANK

By:    /s/ Brian M. Lewis                
Name: Brian M. Lewis
Title:    Managing Director



Signature Page to Project Summit Commitment Letter



WELLS FARGO SECURITIES, LLC

By:    /s/ Mitch Williams            
Name: Mitch Williams
Title: Vice President

WELLS FARGO BANK, N.A.

By:    s/ Nathan Paouncic            
Name: Nathan Paouncic
Title:    Vice President


Signature Page to Project Summit Commitment Letter



BANK OF MONTREAL

By:    /s/ David Lynch                
Name: David Lynch
Title:    Managing Director

BMO CAPITAL MARKETS CORP.

By:    /s/ David Lynch                
Name: Dave Lynch
Title:    Managing Director


Signature Page to Project Summit Commitment Letter



SANTANDER BANK, N.A.

By:    /s/ David Swoyer            
Name: David Swoyer
Title:    Executive Director, Middle Market



Signature Page to Project Summit Commitment Letter



KEYBANK NATIONAL ASSOCIATION

By:    /s/ Robert Levy                
Name:    Robert Levy
Title:    Director

KEYBANC CAPITAL MARKETS INC.

By:    /s/ Robert Levy                
Name:    Robert Levy
Title:    Director



Signature Page to Project Summit Commitment Letter



REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK

By:    /s/ Russ Fallis                
Name:    Russ Fallis
Title:    Managing Director



Signature Page to Project Summit Commitment Letter



DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH

By:    /s/ Celine Catherine            
Name:    Celine Catherine
Title:    Managing Director

By:    /s/ Joseph Devine            
Name:    Joseph Devine
Title:    Director

DEUTSCHE BANK SECURITIES INC.

By:    /s/ Celine Catherine            
Name:    Celine Catherine
Title:    Managing Director

By:    /s/ Joseph Devine            
Name:    Joseph Devine
Title:    Director



Signature Page to Project Summit Commitment Letter



DEUTSCHE BANK AG NEW YORK BRANCH

By:    /s/ Sandeep Desal            
Name:    Sandeep Desal
Title:    Managing Director

By:    /s/ Joseph Devine            
Name:    Joseph Devine
Title:    Director


Signature Page to Project Summit Commitment Letter



FIFTH THIRD BANK, NATIONAL ASSOCIATION

By:    /s/ Lydia Altman            
Name:    Lydia Altman
Title:    Senior Vice President
    

Signature Page to Project Summit Commitment Letter




Accepted and agreed to as of the date
first written above:
WEX INC.
By:
/s/ Michael Thomas    
Name: Michael Thomas
Title: Vice President and Treasurer


Signature Page to Project Summit Commitment Letter



ANNEX I
SUMMARY OF TERMS AND CONDITIONS
SENIOR CREDIT FACILITIES
Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Commitment Letter to which this Annex I is attached.
Borrowers:
WEX Inc., a Delaware corporation (the “Company”) and, with respect to the Revolving Credit Facility, WEX International Holdings and any other subsidiary of the Company appointed as a Designated Borrower (as defined in the Existing Credit Agreement (collectively, the “Borrowers”).
Guarantors:
Same as the Existing Credit Agreement.
Senior Administrative and
Collateral Agent:
Bank of America, N.A. (“Bank of America”) will continue to act as sole and exclusive administrative and collateral agent for the Lenders (the “Senior Administrative Agent”).

Joint Lead Arrangers
and Bookrunning
Managers:
BofA Securities, Inc. (or any of its affiliates) (“BofA Securities”), Citizens Bank, N.A. (“Citizens”), MUFG (as defined below), SunTrust Robinson Humphrey, Inc. (“STRH”), Wells Fargo Securities, LLC (“Wells Fargo Securities”), BMO Capital Markets Corp. (“BMO”), Santander Bank, N.A. (“Santander”), KeyBanc Capital Markets Inc. (“KBCM”), Regions Capital Markets, a division of Regions Bank (“Regions”), Deutsche Bank Securities Inc. (“DBSI”) and Fifth Third Bank, National Association (“Fifth Third”) will act as joint lead arrangers and joint bookrunning managers for the Acquisition Term Loans (the “Senior Lead Arrangers”). “MUFG” means MUFG Union Bank, N.A., MUFG Bank, Ltd., MUFG Securities Americas Inc. and/or any other affiliates or subsidiaries as they collectively deem appropriate to provide the services referred to herein.
Senior Lenders:
Banks, financial institutions and institutional lenders selected by the Senior Lead Arrangers in consultation with the Company (excluding the Excluded Institutions) and that are reasonably acceptable to the Company (with the Company’s consent not to be unreasonably withheld, conditioned or delayed) and, after the initial funding of the Senior Credit Facilities, subject to the restrictions set forth in the Assignments and Participations section below (the “Senior Lenders”).
Existing Credit Agreement:
Credit Agreement, dated as of July 1, 2016 (as amended, supplemented or otherwise modified prior to the Closing Date, the “Existing Credit Agreement”), among the Company, certain subsidiaries of the Company, as borrowers or guarantors, Bank of America, N.A., as administrative agent and collateral agent, and the other parties thereto.

Annex I-1




Facilities:
An aggregate principal amount of $2,496 million will be available through the following facilities:
Term Loan Facility: a $1,676 million (as may be reduced by the TLA Backstop Commitment Reduction and/or the Acquisition Term Loan Commitment Reduction) term loan B facility incurred pursuant to Section 2.17 and Section 2.18 of the Existing Credit Agreement in the form of a new class of term loans, all of which will be drawn on the Closing Date (the “Term Loan Facility”). The Term Loan Facility will be available in U.S. Dollars. As of the date hereof, the TLA Backstop Commitment Reduction has occurred in accordance with its terms.
Revolving Credit Facility: to the extent that the Financial Covenant Amendment Trigger shall not have occurred, a $820.0 million revolving credit facility (the “Revolving Credit Facility”), pursuant to Section 2.18 of the Existing Credit Agreement as Refinancing Revolving Credit Commitments (as defined in the Existing Credit Agreement) to replace all outstanding revolving commitments under the Existing Credit Agreement, available from time to time on or after the Closing Date until the Revolving Maturity Date (as defined below), and to include a committed sublimit of $250.0 million for the issuance of standby and commercial letters of credit (each, a “Letter of Credit”) and a sublimit for swingline loans (each, a “Swingline Loan”). Letters of Credit will be initially issued by Bank of America (in such capacity, the “Issuing Bank”), and each of the Lenders under the Revolving Credit Facility will purchase an irrevocable and unconditional participation in each Letter of Credit and each Swingline Loan. Letters of Credit may be issued on the Closing Date in order to backstop, roll over or replace letters of credit outstanding under the Existing Credit Agreement. The Revolving Credit Facility will be available in U.S. Dollars and in “Alternative Currencies” (as defined in the Existing Credit Agreement). As of the date hereof, the Financial Covenant Trigger has occurred in accordance with its terms and, as a result, the commitments of the Backstop Lender with respect to the Revolving Credit Facility (but, for the avoidance of doubt, not under the Existing Credit Agreement) have been reduced to zero.
Swingline Option:
Same as the Existing Credit Agreement, Bank of America, N.A., in its capacity as the swingline lender, may make Swingline Loans available on a same day basis.
Purpose:
The proceeds of the borrowings under the Senior Credit Facilities on the Closing Date, together with, the Equity Issuance, the Additional Equity Issuance, if any, and any proceeds of the Bridge Facility or Permanent Securities, shall be used (i) to finance in part the Acquisition, (ii) to consummate the Backstop Refinancing (if applicable) and (iii) to pay fees and expenses incurred in connection with the Transaction; provided that up to $760.0 million in the aggregate of borrowings under the Revolving Credit Facility (as defined in the Existing Credit Agreement), proceeds from the aggregate principal amount of Notes and Permanent

Annex I-2




Securities in excess of $600.0 million issued to finance the Acquisition and cash on hand may be used on the Closing Date to finance the Acquisition, so long as the amount of Acquisition Term Loans to be funded on the Closing Date is reduced on a dollar for dollar basis until such amount equals $0. In addition to the foregoing, the proceeds of the Revolving Credit Facility shall be used to provide ongoing working capital, to finance acquisitions, restricted payments, to refinance indebtedness and for other general corporate purposes of the Company and its subsidiaries.
Interest Rates:
The interest rates per annum (calculated on a 360-day basis) applicable to the Senior Credit Facilities will be, at the option of the applicable Borrower (i) LIBOR plus the Applicable Margin (as hereinafter defined) or (ii) the Base Rate plus the Applicable Margin. The “Applicable Margin” means (a) with respect to the Revolving Credit Facility, initially 3.50% per annum, in the case of LIBOR advances, and 2.50% per annum, in the case of Base Rate advances, and (b) with respect to the Term Loan Facility, 2.50% per annum, in the case of LIBOR advances, and 1.50% per annum, in the case of Base Rate advances. From and after delivery of the financial statements for the first full fiscal quarter following the Closing Date, the Applicable Margins with respect to the Revolving Credit Facility will be subject to adjustment based on the grid set forth below:
Applicable Rate
 
Pricing Level
Consolidated Leverage Ratio
Base Rate Loans
Eurocurrency Rate Loans
(Letters of Credit)
Commitment Fee
1
< 3.00 to 1.00
1.50%
2.50%
0.30%
2
≥ 3.00 to 1.00 and < 4.00 to 1.00
2.00%
3.00%
0.40%
3
≥ 4.00 to 1.00
2.50%
3.50%
0.50%

Each Swingline Loan shall bear interest at the Base Rate plus the Applicable Margin for Base Rate loans under the Revolving Credit Facility.
The applicable Borrower may select interest periods of one week, one, two, three or six months (and, if agreed to by all relevant Lenders, twelve months or less) for LIBOR advances. Interest shall be payable at the end of the selected interest period, but no less frequently than quarterly.
LIBOR” and “Base Rate” will have meanings given to the terms “Eurocurrency Rate” and “Base Rate” in the Existing Credit Agreement.
Immediately upon the occurrence of any principal payment or bankruptcy event of default or upon the request of the required lenders during the continuance of any other event

Annex I-3




of default, interest will accrue on the outstanding obligations under the Senior Credit Facilities at the Default Rate (as defined in the Existing Credit Agreement).
Commitment Fee:
A commitment fee of, initially, 0.50% per annum shall be payable on the actual daily unused portions of the Revolving Credit Facility, such fee to be payable quarterly in arrears and on the date of termination or expiration of the commitments under the Revolving Credit Facility. From and after delivery of the financial statements for the first full fiscal quarter following the Closing Date, the commitment fee will be subject to adjustment based on the grid set forth above. Swingline Loans will not be considered utilization of the Revolving Credit Facility for purposes of this calculation. No commitment fee shall be paid to any defaulting lender.
Calculation of Interest
and Fees:
Same as the Existing Credit Agreement.
Cost and Yield Protection:
Same as the Existing Credit Agreement.
Tax Gross-Up:
Same as the Existing Credit Agreement.
Letter of Credit Fees:
Letter of Credit fees equal to the Applicable Margin from time to time on LIBOR advances under the Revolving Credit Facility on a per annum basis will be payable quarterly in arrears and shared proportionately by the Lenders under the Revolving Credit Facility. In addition, a fronting fee equal to 12.5 basis points per annum will be payable to the Issuing Bank for its own account, as well as customary issuance and documentary fees. Both the Letter of Credit fees and the fronting fees will be calculated on the amount available to be drawn under each outstanding Letter of Credit.
Maturity:
Term Loan Facility: 7 years after the Closing Date.
Revolving Credit Facility: The Revolving Maturity Date (as defined in the Existing Credit Agreement).
Incremental Facilities:
Same as the Existing Credit Agreement; provided that in the case of an incremental term facility (i) the maturity date applicable to such incremental term facility shall be on or after the maturity date of the Term Loan Facility (and the weighted average life shall be no shorter than the weighted average life of the Term Loan Facility) and (ii) in the event that the all-in yield for such incremental term facility is greater than the all-in yield for the Term Loan Facility by more than 0.50%, the Applicable Margin for the Term Loan Facility shall be increased to the extent necessary so that the all-in yield for such incremental term facility is not more than 0.50% higher than the all-in yield for the Term Loan Facility.
Refinancing Facilities:
Same as the Existing Credit Agreement.

Annex I-4




Documentation
Standard:
The Credit Documentation for the Senior Credit Facilities shall be in the form of an amendment to the Existing Credit Agreement pursuant to Section 2.17 of the Existing Credit Agreement (in the case of the Acquisition Term Loans) and Section 2.18 of the Existing Credit Agreement (in the case of the TLA Backstop Term Loans and the Revolving Credit Facility) and shall otherwise be consistent with the Existing Credit Agreement except as set forth herein (collectively, the “Senior Facilities Documentation Standard”).
Scheduled Amortization:
Term Loan Facility: The Term Loan Facility will be subject to quarterly amortization of principal in aggregate annual amounts equal to 1.00% of the original aggregate principal amount of the Term Loan Facility, with the balance payable at final maturity of the Term Loan Facility.
Revolving Credit Facility: None.
Mandatory Prepayments:
Same as the Existing Credit Agreement.
Optional Prepayments and
Commitment Reductions:
The Senior Credit Facilities may be prepaid at any time in whole or in part without premium or penalty, upon written notice, at the option of the applicable Borrower, except (x) that any prepayment of LIBOR advances other than at the end of the applicable interest periods therefor shall be made with reimbursement for any funding losses and redeployment costs of the Lenders resulting therefrom and (y) as set forth in “Repayment Premium” below. Each optional prepayment of the Term Loan Facility shall be applied as directed by the Company. The unutilized portion of any commitment under the Senior Credit Facilities may be reduced permanently or terminated by the Company at any time without penalty.
Repayment Premium:
In the event that all or any portion of the Term Loan Facility is subject to a Repricing Transaction (as defined in the Existing Credit Agreement) occurring on or prior to the date that is six months following the Closing Date, such repayment, prepayment, refinancing, replacement or repricing will be made at 101.0% of the principal amount so repaid, prepaid, refinanced, replaced or repriced. If all or any portion of the Term Loan Facility held by any Lender is repaid, prepaid, refinanced or replaced pursuant to a “yank-a-bank” or similar provision in the Credit Documentation as a result of, or in connection with, such Lender not agreeing or otherwise consenting to any waiver, consent or amendment in connection with a Repricing Transaction, such repayment, prepayment, refinancing or replacement will be made at 101.0% of the principal amount so repaid, prepaid, refinanced or replaced. For the avoidance of doubt, in no event shall the application of proceeds of an equity issuance be deemed a Repricing Transaction.
Security:
Same as the Existing Credit Agreement.
Conditions Precedent

Annex I-5




to Closing and Initial
Funding:
Any conditions to the availability of the initial borrowing and other extensions of credit under the Senior Credit Facilities on the Closing Date will be limited to those conditions specified in paragraph 5 of the Commitment Letter.
Conditions Precedent to
Each Borrowing Under the
Revolving Credit Facility
After the Closing Date:
Same as the Existing Credit Agreement.

Representations and
Warranties:
Same as the Existing Credit Agreement. Notwithstanding anything herein to the contrary, during the period from the Closing Date until the date that is 30 days after the Closing Date (the “Clean-Up Period”), any breach of a representation or warranty (other than a Specified Representation) arising solely by reason of any matter or circumstance relating to the Acquired Business and its subsidiaries will be deemed not to be a breach of a representation or warranty if, and for so long as, the circumstances giving rise to the relevant breach of representation or warranty: (a) are capable of being remedied within the Clean-Up Period and the Company and its subsidiaries are taking appropriate steps to remedy such breach, (b) do not have and would not be reasonably likely to have a Material Adverse Effect and (c) were not procured by or approved by the Company or any of its subsidiaries immediately prior to the Closing Date.
Covenants:
Same as the Existing Credit Agreement, except that Section 7.11 of the Existing Credit Agreement shall, to the extent applicable, be amended consistent with the Financial Covenant Amendment.
Events of Default:
Same as the Existing Credit Agreement, it being understood that with respect to the financial covenants applicable to the Revolving Credit Facility, a breach shall only result in an event of default with respect to the Term Loan Facility upon the Lenders under the Revolving Credit Facility having terminated the commitments under the Revolving Credit Facility and accelerating any loans thereunder then outstanding.
Assignments and
Participations:
Same as the Existing Credit Agreement.
Waivers and Amendments:
Same as the Existing Credit Agreement.
Indemnification:
Same as the Existing Credit Agreement.
Governing Law:
New York.
Expenses:
Same as the Existing Credit Agreement.
Counsel to the Senior

Annex I-6




Lead Arrangers and
the Senior Administrative
Agent:
Cahill Gordon & Reindel LLP.



Annex I-7




ANNEX II-A
SUMMARY OF TERMS AND CONDITIONS
BRIDGE FACILITY
Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Commitment Letter to which this Annex II-A is attached.
Borrower:
The Company.
Guarantors:
Same as the Senior Credit Facilities; provided that no foreign subsidiaries of the Company shall be Guarantors under the Bridge Facility.
Bridge Administrative Agent:
Bank of America, N.A. or an affiliate thereof will act as sole and exclusive administrative agent for the Bridge Lenders (the “Bridge Administrative Agent”).
Joint Lead Arrangers and
Bookrunning Managers:
BofA Securities, Inc. (or any of its affiliates) (“BofA Securities”), Citizens Bank, N.A. (“Citizens”), MUFG (as defined below), SunTrust Robinson Humphrey, Inc. (“STRH”), Wells Fargo Securities, LLC (“Wells Fargo Securities”), BMO Capital Markets Corp. (“BMO”), Santander Bank, N.A. (“Santander”), KeyBanc Capital Markets Inc. (“KBCM”), Regions Capital Markets, a division of Regions Bank (“Regions”) and Deutsche Bank Securities Inc. (“DBSI”) and Fifth Third Bank, National Association (“Fifth Third”) will act as joint lead arrangers and joint bookrunning managers for the Bridge Loans (the “Bridge Lead Arrangers”). “MUFG” means MUFG Union Bank, N.A., MUFG Bank, Ltd., MUFG Securities Americas Inc. and/or any other affiliates or subsidiaries as they collectively deem appropriate to provide the services referred to herein.
Bridge Lenders:
Banks, financial institutions and institutional lenders selected by the Bridge Lead Arrangers in consultation with the Borrower (excluding the Excluded Institutions) and that are reasonably acceptable to the Borrower (with the Borrower’s consent not to be unreasonably withheld, conditioned or delayed) and, after the initial funding of the Bridge Facility, subject to the restrictions set forth in the Assignments and Participations section below (the “Bridge Lenders”).
Bridge Loans:
An amount equal to $600.0 million (as may be reduced by the Bridge Commitment Reduction) of senior secured bridge loans (the “Bridge Loans”), less the aggregate amount of gross proceeds of (a) any Notes or (b) without duplication, any other debt securities of the Borrower issued on or prior to the Closing Date to finance the Acquisition and designated in writing by the Borrower as “Permanent Securities” (collectively, “Permanent Securities”). The Bridge Loans will be available to the Borrower in one drawing upon consummation of the Acquisition.

Annex II-A-1




Ranking:
The Bridge Loans will be senior secured obligations of the Borrower and rank pari passu in right of payment with or senior to all other obligations of the Borrower. The guarantees will be senior secured obligations of each Guarantor and rank pari passu in right of payment with or senior to all other obligations of such Guarantor.
Security:
Subject to the Funds Certain Provisions, the Bridge Facility shall be secured on a pari passu basis with the Senior Credit Facilities (if applicable) and the Existing Credit Agreement with respect to the collateral held by the Borrower and the Guarantors under the Bridge Facility. The lien priority, relative rights and other creditors’ rights issues in respect of the Senior Credit Facilities (if applicable), the Existing Credit Agreement and the Bridge Facility will be set forth in a intercreditor agreement substantially in the form of the attached as Annex IV.
Purpose:
The proceeds of the Bridge Loans, together with borrowings under the Senior Credit Facilities on the Closing Date, the Equity Issuance, and the Additional Equity Issuance, if any, shall be used (i) to finance in part the Acquisition, (ii) to consummate the Backstop Refinancing (if applicable) and (iii) to pay fees and expenses incurred in connection with the Transaction.
Interest Rate:
Interest shall be payable quarterly in arrears at a rate per annum equal to three-month LIBOR plus the Applicable Margin.
Applicable Margin” shall initially be 500 basis points, and will increase by an additional 50 basis points at the end of each subsequent three-month period for as long as the Bridge Loans are outstanding; provided that the interest rate shall not exceed the Total Cap (as defined in the Fee Letter).
LIBOR” shall be deemed to be not less than 1.00% per annum.
Immediately upon the occurrence of any principal payment or bankruptcy event of default or upon the request of the required lenders during the continuance of any other event of default, interest will accrue (i) on the principal of the any loan at a rate of 200 basis points in excess of the rate otherwise applicable to such loan and (ii) on any other outstanding amount at a rate of 200 basis points in excess of the non-default interest rate then applicable to the Bridge Loans, and will be payable on demand.
All calculations of interest shall be made on the basis of actual number of days elapsed in a 360-day year.
Cost and Yield Protection:
Consistent with the Bridge Documentation Standard.
Amortization:
None.

Annex II-A-2




Optional Prepayments:
The Bridge Loans may be prepaid prior to the first anniversary of the Closing Date (the “Rollover Date”), without premium or penalty, in whole or in part, upon written notice, at the option of the Borrower, at any time, together with accrued interest to the prepayment date.
Mandatory Prepayments:
The Borrower shall prepay the Bridge Loans without premium or penalty together with accrued interest to the prepayment or purchase date, with (a) subject to customary exceptions and thresholds consistent with the Existing Credit Agreement, all the net cash proceeds by the Borrower or any of its subsidiaries from any disposition of assets outside the ordinary course of business or casualty event by the Borrower or any of its subsidiaries, in each case, to the extent such proceeds are not reinvested (or committed to be reinvested) in assets useful in the business of the Borrower or any of its subsidiaries within twelve months of the date of such disposition or casualty event and, if so committed to be reinvested, reinvested no later than 180 days after the end of such twelve month period, (b) all net cash proceeds from the issuance or incurrence after the Closing Date of any Take-Out Financing (as defined in the Fee Letter) or any qualifying refinancing indebtedness and (c) all net cash proceeds from any issuance of equity interests by the Borrower, subject to exceptions to be agreed. The Borrower’s obligation to prepay Bridge Loans and purchase Exchange Notes shall be deemed to be satisfied with respect to clause (a) above on a dollar-for-dollar basis to the extent of amounts applied to (i) repay loans under the Existing Credit Agreement (including the Term Loan Facility), and in the case of the revolving credit facility, to the extent accompanied by a permanent reduction in commitments thereunder and (ii) prepay Bridge Loans or purchase Exchange Notes, as applicable, on a pro rata basis.
Change of Control:
In the event of a Change of Control (to be defined as in the Existing Credit Agreement), each Bridge Lender will have the right to require the Borrower, and the Borrower must offer, to prepay the outstanding principal amount of the Bridge Loans at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date of prepayment.
Conversion into Rollover
Loans:
If the Bridge Loans have not been previously prepaid in full for cash on or prior to the Rollover Date, the principal amount of the Bridge Loans outstanding on the Rollover Date may, subject to the conditions precedent set forth in Annex II-B, be converted into senior secured rollover loans with a maturity of 6 years from the Closing Date and otherwise having the terms set forth in Annex II-B (the “Rollover Loans”). Any Bridge Loans not converted into Rollover Loans shall be repaid in full on the Rollover Date.

Annex II-A-3




Exchange into
Exchange Notes:
Each Bridge Lender that is (or will immediately transfer its Exchange Notes to) an Eligible Holder (as defined in Annex II-C) will have the right, at any time on or after the Rollover Date, to exchange Rollover Loans held by it for senior secured exchange notes of the Borrower having the terms set forth in Annex II-C (the “Exchange Notes”). Notwithstanding the foregoing, the Borrower will not be required to exchange Rollover Loans for Exchange Notes unless at least $100 million of Exchange Notes would be outstanding immediately after such exchange. The Exchange Notes shall not be subject to any registration rights and shall be “Rule 144A for life”.
Bridge Loan Documentation
Standard:
The Credit Documentation for the Bridge Facility (i) shall be negotiated in good faith and be substantially identical to the Existing Credit Agreement and Collateral Documents (as defined in the Existing Credit Agreement) to the extent applicable, in each case with appropriate modifications to reflect the structure of the Bridge Facility, (ii) shall contain only the terms and conditions set forth in this Summary of Term and Conditions and other terms and provisions to be mutually agreed upon, the definitive terms of which will be negotiated in good faith, (iii) shall reflect the operational and strategic requirements of the Borrower and its respective subsidiaries in light of their size, industries and practices, (iv) shall be consistent with the proposed business plan and financial model of the Borrower, (v) shall reflect the customary agency and operational requirements of the Bridge Administrative Agent and applicable legal and accounting updates and (vi) shall be in a form such that they do not impair the availability of the Bridge Facility on the Closing Date if the conditions to financing in paragraph 5 of the Commitment Letter are met (collectively, the “Bridge Documentation Standard”).
Conditions Precedent:
Any conditions to the availability of the initial borrowing and other extensions of credit under the Bridge Facility on the Closing Date will be limited to those conditions specified in paragraph 5 of the Commitment Letter.
Affirmative Covenants:
In accordance with the Bridge Documentation Standard, affirmative covenants that are consistent with the Existing Credit Agreement. In addition, the Borrower will be required to comply with the Fee Letter and to use its commercially reasonable efforts in accordance with the Fee Letter to refinance the Bridge Facility with the proceeds of the Permanent Securities as promptly as practicable following the Closing Date, including by taking the actions specified in paragraph (vii) of Annex III.
Negative Covenants:
In accordance with the Bridge Documentation Standard, negative covenants that are customary for “Rule 144A for life” high yield secured debt securities of issuers of similar size and credit quality;

Annex II-A-4




provided that prior to the Rollover Date, the limitation on restricted payments and the limitation on debt will be more restrictive than customary high yield covenants and the Existing Credit Agreement, to the extent permitted by the Existing Credit Agreement.
Representations and
Warranties, Events of
Default, Waivers and
Consents:
Based on those contained in the Existing Credit Agreement with customary modifications, including with respect to the Clean-Up Period.
Assignments and
Participations:
Each Bridge Lender will be permitted to make assignments in minimum amounts to be agreed to other entities approved by the Bridge Administrative Agent, which approval shall not be unreasonably withheld or delayed; provided, however, that (i) no such approval shall be required in connection with assignments to other Bridge Lenders or any of their affiliates, and (ii) prior to the Rollover Date and so long as no Demand Failure Event (as defined in the Fee Letter) has occurred and no payment or bankruptcy event of default shall be continuing, the consent of the Borrower shall be required with respect to any assignment if, subsequent thereto, the Initial Bridge Lenders would hold less than 51% of the outstanding aggregate principal amount of the loans under the Bridge Facility. Each Bridge Lender will also have the right, without any consent, to assign as security all or part of its rights under the Credit Documentation to any Federal Reserve Bank. Bridge Lenders will be permitted to sell participations with voting rights limited to significant matters such as changes in amount, rate and maturity date. An assignment fee in the amount of $3,500 will be charged with respect to each assignment unless waived by the Bridge Administrative Agent in its sole discretion.
Governing Law:
New York.
Indemnification and
Expenses:
Same as the Existing Credit Agreement.
Counsel to Bridge Lead    
Arrangers:
Cahill Gordon & Reindel LLP.
    
ANNEX II-B
SUMMARY OF TERMS AND CONDITIONS
SENIOR ROLLOVER LOANS
Capitalized terms not otherwise defined herein have the same meanings as specified
therefor in the Commitment Letter to which this
Annex II-B is attached.
Borrower:
Same as the Borrower of the Bridge Loans.
Guarantors:
Same as the Bridge Loans.
Rollover Loans:
Rollover Loans in an initial principal amount equal to 100% of the outstanding principal amount of the Bridge Loans on the Rollover Date. Subject to the conditions precedent set forth below, the Rollover Loans will be available to the Borrower to refinance the Bridge Loans on the Rollover Date. The Rollover Loans will be governed by the Credit Documentation for the Bridge Loans and, except as set forth below, shall have the same terms as the Bridge Loans.
Ranking:
Same as the Bridge Loans.
Security:
Same as the Bridge Loans.
Interest Rate:
Interest shall be payable quarterly in arrears at a rate per annum equal to the Total Cap.
Immediately upon the occurrence of any principal payment or bankruptcy event of default or upon the request of the required lenders during the continuance of any other event of default, interest will accrue on the overdue principal of the Rollover Loans and on any other overdue amount at a rate of 200 basis points in excess of the rate otherwise applicable to the Rollover Loans, and will be payable on demand.
All calculations of interest shall be made on the basis of actual number of days elapsed in a 360-day year.
Maturity:
Six (6) years after the Closing Date (the “Rollover Maturity Date”).
Amortization:
None.
Optional Prepayments:
For so long as the Rollover Loans have not been exchanged for Exchange Notes of the Borrower as provided in Annex II-C, they may be prepaid at the option of the Borrower, in whole or in part, at any time, together with accrued and unpaid interest to the prepayment date (but without premium or penalty).
Conditions Precedent to
Rollover:
The ability of the Borrower to convert any Bridge Loans into Rollover Loans is subject to the following conditions being satisfied:
(i)
at the time of any such refinancing, there shall exist no payment or bankruptcy event of default;
(ii)
all fees due to the Bridge Lead Arrangers and the Initial Bridge Lenders shall have been paid in full; and
(iii)
no order, decree, injunction or judgment enjoining any such refinancing shall be in effect.
Covenants/Other Terms:
From and after the Rollover Date, the covenants, mandatory offers to purchase (in lieu of mandatory prepayments) and defaults which would be applicable to the Exchange Notes, if issued, will also be applicable to the Rollover Loans in lieu of the corresponding provisions of the Bridge Loans (except that any offer to repurchase upon the occurrence of a change of control will be made at 100% of the outstanding principal amount thereof, plus accrued and unpaid interest to the date of repurchase).
Assignments and
Participations:
Same as the Bridge Loans.
Governing Law:
New York.
Indemnification and
Expenses:
Same as the Bridge Loans.

ANNEX II-C
SUMMARY OF TERMS AND CONDITIONS
SENIOR EXCHANGE NOTES
Capitalized terms not otherwise defined herein have the same meanings as specified
therefor in the Commitment Letter to which this
Annex II-C is attached.
Issuer:
Same as the Borrower of the Bridge Loans.
Guarantors:
Same as the Bridge Loans.
Exchange Notes:
The Borrower will issue the Exchange Notes under an indenture (the “Indenture”) which will include provisions customary for an indenture governing publicly traded high yield debt securities, but shall contain only those payments, mandatory offers to purchase, covenants and events of default expressly set forth (or referred to) in this Annex II-C and shall be consistent with the Bridge Documentation Standard (for the avoidance of doubt, for the purposes of this Annex II-C, as applicable to high yield debt securities rather than a bridge facility). The Borrower will appoint a trustee reasonably acceptable to the Bridge Administrative Agent. Except as expressly set forth above, the Exchange Notes shall have the same terms as the Rollover Loans.
Ranking:
Same as the Bridge Loans.
Security:
Same as the Bridge Loans.
Interest Rate:
Interest shall be payable semi-annually in arrears at a per annum rate equal to the Total Cap.
The Borrower will pay interest on overdue principal and premium, if any, at the then applicable interest rate on the Exchange Notes to the extent lawful. In addition, the Borrower shall pay interest on overdue installments of interest (without regard to any applicable grace periods), at the then applicable interest rate on the Exchange Notes to the extent lawful.
Maturity:
Same as the Rollover Loans.
Amortization:
None.
Optional Redemption:
Until the second anniversary of the Closing Date, the Exchange Notes will be redeemable at a customary “make-whole” premium calculated using a discount rate equal to the yield on comparable Treasury securities plus 50 basis points. Thereafter, the Exchange Notes will be redeemable at the option of the Issuer at a premium equal to 50% of the coupon on the Exchange Notes, declining ratably to par on the date which is two years prior to the Rollover Maturity Date.
In addition, Exchange Notes will be redeemable at the option of the Issuer prior to the second anniversary of the Closing Date with the net cash proceeds of qualified equity offerings of the Issuer at a premium equal to the coupon on the Exchange Notes; provided that after giving effect to such redemption at least 65% of the aggregate principal amount of Exchange Notes originally issued shall remain outstanding.
Mandatory
Offer to Purchase:
The Issuer will be required to offer to purchase the Exchange Notes upon a Change of Control (to be defined in the Indenture in a manner consistent with the Existing Credit Agreement) at 101% of the principal amount thereof plus accrued interest to the date of purchase (or 100% in the case of Exchange Notes held by a Commitment Party or its affiliates, with customary exceptions with respect to asset management affiliates or bona fide open market purchases). In addition, the Exchange Notes will be subject to a customary offer to purchase upon dispositions by the Borrower or any of its subsidiaries.
Right to Transfer
Exchange Notes:
Each holder of Exchange Notes shall have the right to transfer its Exchange Notes in whole or in part, at any time to an Eligible Holder (as defined below); provided that if the Issuer or any of its affiliates holds Exchange Notes, such Exchange Notes shall be disregarded in any voting. “Eligible Holder” will mean (a) an institutional “accredited investor” within the meaning of Rule 501 under the Securities Act, (b) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, (c) a person acquiring the Exchange Notes pursuant to an offer and sale occurring outside of the United States within the meaning of Regulation S under the Securities Act or (d) a person acquiring the Exchange Notes in a transaction that is, in the opinion of counsel reasonably acceptable to the Issuer, exempt from the registration requirements of the Securities Act; provided that in each case such Eligible Holder represents that it is acquiring the Exchange Notes for its own account and that it is not acquiring such Exchange Notes with a view to, or for offer or sale in connection with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States or any state thereof.
Covenants:
Such covenants as are customary for offerings of high yield senior secured debt securities (including incurrence-based negative covenants) which shall be not less favorable than those in the Senior Credit Facilities or Bridge Documentation Standard (for the avoidance of doubt, the limitation on restricted payments and the limitation on debt being more restrictive than customary high yield covenants and the Senior Credit Facilities under the Bridge Facility shall not be applicable).
Registration Rights:
None.
Governing Law:
New York.
Indemnification and
Expenses:
Same as the Bridge Loans.


ANNEX III
CONDITIONS PRECEDENT TO CLOSING
Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Commitment Letter to which this Annex III is attached.
The initial extensions of credit under the Facilities will, subject to the Funds Certain Provisions, be subject to satisfaction or waiver (or the substantially concurrent satisfaction, as applicable) of the following conditions precedent (as well as those set forth in paragraph 5 of the Commitment Letter):
(i)    The Acquisition (including the Equity Issuance) shall have been, or shall substantially concurrently with the funding of the Facilities be, consummated in all material respects in accordance with the terms of the Acquisition Agreement and shall not have been altered, amended or otherwise changed or supplemented or any provision waived or consented to (including any change in the purchase price) in any manner that is materially adverse to the interests of the Lenders or the Lead Arrangers (in their respective capacities as such) without the prior written consent (not to be unreasonably withheld, delayed or conditioned) of the Initial Lenders (it being understood that (x) any reduction of the purchase price in respect of the Acquisition will not be materially adverse to the Lenders and the Lead Arrangers, so long as such reduction shall be applied first to reduce the amount of commitments in respect of the Bridge Facility (or any Permanent Securities issued in lieu of the Bridge Facility) and, after commitments in respect of the Bridge Facility have been reduced to zero, to reduce the amount of the commitments in respect of Acquisition Term Loans, and (y) any increase in the purchase price in respect of the Acquisition will not be deemed to be materially adverse to the interests of the Lenders or the Lead Arrangers (in their respective capacities as such) to the extent that proceeds from the issuance of common stock (or other equity on terms reasonably acceptable to the Commitment Parties) or cash on hand (other than as a result of borrowings under the Borrower’s revolving credit facility under the Existing Credit Agreement) is used to fund any such increase). The Acquisition Agreement Representations shall be true and correct in all material respects, but only to the extent the failure of any Acquisition Agreement Representation to be true and correct in all material respects gives you the right to terminate your obligations under the Acquisition Agreement, or to decline to consummate the Acquisition pursuant to the Acquisition Agreement, and the Specified Representations shall be true and correct in all material respects.
(ii)    Since the date of the Acquisition Agreement, there shall not have been any Material Adverse Effect (as defined in the Acquisition Agreement as in effect on January 24, 2020) and no event, change, development, state of facts or effect shall have occurred that would reasonably be expected to have a Material Adverse Effect.
(iii)    The Lenders shall have received certification as to the solvency of the Company and its subsidiaries on a consolidated basis (after giving effect to the Transaction and the incurrence of indebtedness related thereto) from the chief financial officer of the Company, substantially in the form of the solvency certificate attached as Exhibit N to the Existing Credit Agreement.
(iv)    The Lenders shall have received (a) customary opinions of counsel to the Borrowers and the Guarantors and customary corporate resolutions, certificates, borrowing notices and (b) subject to the Funds Certain Provisions, substantially concurrent with the consummation of the Acquisition, the Company shall have complied with any applicable requirements of Section 6.13 of the Existing Credit Agreement as of the Closing Date with respect to any entities organized in the United States (it being understood that the Company shall comply with Section 6.13 of the Existing Credit Agreement with respect to entities organized in other jurisdictions within the time periods set forth in Section 6.13 of the Existing Credit Agreement).
(v)    The Lead Arrangers shall have received:
(1)(A) the audited consolidated balance sheets and related consolidated statements of operations, cash flows and shareholders’ equity of (x) the Company for the three most recently completed fiscal years of the Company ended at least 60 days before the Closing Date and (y) each of the Everest Target and the Olympus Target for such number of the most recently completed fiscal years ended at least 75 days before the Closing Date required by Item 9.01 of Form 8-K and Rule 3-05 of Regulation S-X of the SEC for a business acquisition required to be described in answer to Item 2.01 of Form 8-K, in each case, accompanied by an unqualified report thereon by their respective independent registered public accountants; (B) the unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Company, the Everest Target and the Olympus Target for each fiscal quarter (other than the last fiscal quarter of a fiscal year) of the Company, the Everest Target and the Olympus Target ended after December 31, 2019 and at least 45 days before the Closing Date (including the comparable prior year period), in each case, reviewed under Statement on Auditing Standards No. 100 by their respective independent registered public accountants; provided, that in the case of the financial statements to be delivered pursuant to subclauses (A) and (B), (i) in the case of the financial statements of the Olympus Target, such financial statements need not include a reconciliation to generally accepted accounting principles in the United States (“GAAP”) unless it is determined that collectively, the Everest Target and the Olympus Target would be a “significant subsidiary” of the Company pursuant to Rule 1-02(w) of Regulation S-X at a level of significance of 30% or higher, as determined in accordance with Rule 3-05 of Regulation S-X and (ii) in the case of the financial statements of the Everest Target, such financial statements shall include a reconciliation to GAAP unless the Company is able to obtain a “no action letter” from the SEC permitting the exclusion of such reconciliation; and (C) a pro forma balance sheet and related statement of operations of the Company and its subsidiaries (including the Acquired Business) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clauses (A) or (B) above, as applicable, as well as for the most recently completed fiscal year and interim period for which financial statements are required to be delivered pursuant to clauses (A) or (B) above, as applicable, in each case after giving effect to the Transaction (all of which financial statements shall, (i) in the case of the Company, be prepared in accordance with GAAP and Regulation S-X of the Securities Act of 1933, as amended (“Regulation S-X”) (provided that such pro forma financial statements referenced in clause (C) above shall, in all cases, include reconciliations to GAAP for the financial statements of each of the Olympus Target and the Everest Target sufficient to prepare such pro forma financial statements but need not include adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)) and (ii) in the case of the Everest Target and the Olympus Target, be prepared in accordance with IFRS EU (in the case of the Olympus Target and its Subsidiaries) or IFRS IASB (in the case of the Everest Target and its Subsidiaries), as applicable (with reconciliations to GAAP to the extent required above), but which need not be prepared in compliance with Regulation S-X (the financial statements described in clauses (A), (B) and (C), the “Required Bond Financial Statements”); provided, that the filing with the SEC of an annual or quarterly report on Form 10-K or Form 10-Q by the Company containing such required financial statements and audit reports will satisfy the foregoing requirements in clauses (A) and (B) above); provided, further that the Lead Arrangers acknowledge receipt of all financial information required to be delivered for the Company for all fiscal years and fiscal quarters of the Company ended on or prior to March 31, 2020; and
(2)(A) the audited consolidated balance sheets and related consolidated statements of operations, cash flows and shareholders’ equity of (x) the Company for the three most recently completed fiscal years of the Company ended at least 60 days before the Closing Date and (y) each of the Everest Target and the Olympus Target for such number of the most recently completed fiscal years ended at least 75 days before the Closing Date required by Item 9.01 of Form 8-K and Rule 3-05 of Regulation S-X of the SEC for a business acquisition required to be described in answer to Item 2.01 of Form 8-K, in each case, accompanied by an unqualified report thereon by their respective independent registered public accountants; (B) the unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Company, the Everest Target and the Olympus Target for each fiscal quarter (other than the last fiscal quarter of a fiscal year) of the Company, the Everest Target and the Olympus Target ended after December 31, 2019 and at least 45 days before the Closing Date (including the comparable prior year period); provided, that in the case of the financial statements to be delivered pursuant to subclauses (A) and (B), (i) in the case of the financial statements of the Olympus Target, such financial statements need not include a reconciliation to GAAP unless it is determined that collectively, the Everest Target and the Olympus Target would be a “significant subsidiary” of the Company pursuant to Rule 1-02(w) of Regulation S-X at a level of significance of 30% or higher, as determined in accordance with Rule 3-05 of Regulation S-X and (ii) in the case of the financial statements of the Everest Target, such financial statements shall include a reconciliation to GAAP unless the Company is able to obtain a “no action letter” from the SEC permitting the exclusion of such reconciliation; and (C) a pro forma balance sheet and related statement of operations of the Company and its subsidiaries (including the Acquired Business) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clauses (A) or (B) above, as applicable, in each case after giving effect to the Transaction (all of which financial statements shall, (i) in the case of the Company, be prepared in accordance with GAAP (provided that such pro forma financial statements referenced in clause (C) above shall, in all cases, include reconciliations to GAAP for the financial statements of each of the Olympus Target and the Everest Target sufficient to prepare such pro forma financial statements but need not include adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)) and (ii) in the case of the Everest Target and the Olympus Target, be prepared in accordance with IFRS EU (in the case of the Olympus Target and its Subsidiaries) or IFRS IASB (in the case of the Everest Target and its Subsidiaries), as applicable (with reconciliations to GAAP to the extent required above), but which need not be prepared in compliance with Regulation S-X (the financial statements described in clauses (A), (B) and (C), the “Required Bank Financial Statements”); provided, that the filing with the SEC of an annual or quarterly report on Form 10-K or Form 10-Q by the Company containing such required financial statements and audit reports will satisfy the foregoing requirements in clauses (A) and (B) above); provided, further that the Lead Arrangers acknowledge receipt of all financial information required to be delivered for the Company for all fiscal years and fiscal quarters of the Company ended on or prior to March 31, 2020;
(vi)    [Reserved].
(vii)    With respect to the Bridge Facility, (a) one or more investment banks reasonably satisfactory to the Bridge Lead Arrangers (collectively, the “Investment Bank”) shall have been engaged to privately place the Notes (the Commitment Parties acknowledge that the condition set forth in this clause (a) has been satisfied), (b) the Investment Bank shall have received (i) a customary offering memorandum or private placement memorandum (an “Offering Memorandum”) (which for the avoidance of doubt, shall not include information customarily provided by the Investment Bank or its counsel, the description of the Notes and any other parts thereof for which the Investment Bank’s or its advisors’ cooperation or approval would be required for the Offering Memorandum to be complete), suitable for use in a customary “road show” relating to the Notes, which Offering Memorandum shall contain financial statements, pro formas, business and other financial data of the type customarily included in a private placement of non-convertible secured debt securities without registration rights pursuant to Rule 144A promulgated under the Securities Act (it being understood that the only historic and pro forma financial statements required to be delivered with respect to this clause (vii) are the Required Bond Financial Statements), but which, for the avoidance of doubt, shall not include (x) financial information (or audit reports covering financial information) that would be required to be included to permit a registration statement on Form S-1 registering an offering of the Notes to be declared effective pursuant to Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X; (y) information regarding executive compensation under Item 402 of Regulation S-K or related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A or (z) other information not customarily provided in an offering memorandum for a Rule 144A offering without registration rights), and (ii) drafts of customary “comfort” letters (including “negative assurance” comfort) that independent accountants of the Company, the Everest Target and the Olympus Target would be prepared to deliver upon completion of customary procedures in connection with the offering of the Notes (the “Required Bond Information”); provided that if at any time you shall in good faith believe that you have provided the Required Bond Information, you may deliver to the Bridge Lead Arrangers written notice to that effect (stating when you believe you completed any such delivery), in which case you shall be deemed to have delivered the Required Bond Information on the date specified in such notice and the Bond Marketing Period shall be deemed to have commenced on the date specified in such notice, in each case unless the Bridge Lead Arrangers in good faith reasonably believe that you have not completed such delivery and, within two business days after their receipt of such notice from you, the Bridge Lead Arrangers deliver a written notice to you to that effect (stating with specificity which information you have not delivered for purposes of compliance with this condition only) (provided that it is understood that the delivery of such written notice from the Bridge Lead Arrangers to you will not prejudice your right to assert that the Required Bond Information has in fact been delivered), and (c) the Investment Bank shall have been afforded a period of at least 15 consecutive business days following the satisfaction of the condition set forth in clause (b) above to seek to offer and sell or privately place the Notes with qualified purchasers thereof (the “Bond Marketing Period”); provided that if the Bond Marketing Period would not be completed on or prior to August 21, 2020, then the Bond Marketing Period shall commence no earlier than September 8, 2020.
(viii)    All fees due to the Administrative Agents, the Lead Arrangers and the Lenders on the Closing Date pursuant to the Fee Letter and the Amendment Agreement shall have been, or shall substantially concurrently with the initial funding of the Facilities be, paid, and all expenses to be paid or reimbursed to the Administrative Agents and the Lead Arranger that have been invoiced a reasonable period of time prior to the Closing Date shall have been, or shall substantially concurrent with the initial funding of the Facilities be, paid.
(ix)    The Borrowers and each of the Guarantors shall have provided (i) the documentation and other information to the Administrative Agents that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least 3 business days prior to the Closing Date to the extent such information has been requested at least 10 days prior to the Closing Date and (ii) a certification regarding beneficial ownership of the Borrowers required by the Beneficial Ownership Regulations at least 5 days prior to the Closing Date to any Lender who requests such certification at least 10 days prior to the Closing Date.
(x)    With respect to the Senior Credit Facilities, all of the applicable requirements under (i) Section 2.17 of the Existing Credit Agreement (as in effect on the Closing Date) with respect to the incurrence of the Acquisition Term Loans and (ii) if, and only if, the Financial Covenant Amendment Trigger shall not have occurred, Section 2.18 of the Existing Credit Agreement (as in effect on the Closing Date) with respect to the Revolving Credit Facility and the TLA Backstop Term Loans, in each case, shall have been complied with or waived, except to the extent that any such requirements have been satisfied on an earlier date by the making of an LCT Election (as defined in the Existing Credit Agreement) (it being understood and agreed that the Company has made an LCT Election concurrently with the execution and delivery of the Original Commitment Letter). For the avoidance of doubt, from and after the LCT Test Date (as defined in the Existing Credit Agreement), the absence of any Default or Event of Default (other than a payment or bankruptcy Event of Default) or the making of any representations or warranties (other than the Specified Representations) shall not constitute a condition precedent to the initial extensions of credit under the Facilities.
(xi)    The Closing Date shall not occur prior to April 1, 2020.




ANNEX IV
FORM OF INTERCREDITOR AGREEMENT


























[FORM OF]
FIRST LIEN INTERCREDITOR AGREEMENT
among
WEX INC.,

THE OTHER GRANTORS PARTY HERETO,
BANK OF AMERICA, N.A.,
as First Lien Collateral Agent for the Credit Agreement Secured Parties,
[INSERT NAME],
as the Initial Additional Agent,

and
EACH ADDITIONAL AGENT FROM TIME TO TIME PARTY HERETO

dated as of [ ], 20[ ]



FIRST LIEN INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (as amended, supplemented or otherwise modified from time to time, this “Agreement”), among WEX INC., a Delaware corporation (the “Borrower”), the other Grantors (as defined below) party hereto, BANK OF AMERICA, N.A., as collateral agent for the Credit Agreement Secured Parties (as defined below) (in such capacity and together with its successors in such capacity, the “First Lien Collateral Agent”), [INSERT NAME], as agent for the Initial Additional First Lien Secured Parties (as defined below) (in such capacity and together with its successors in such capacity, the “Initial Additional Agent”) and each Additional Agent from time to time party hereto for the Additional First Lien Secured Parties of the Series with respect to which it is acting in such capacity.

In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the First Lien Collateral Agent (for itself and on behalf of the Credit Agreement Secured Parties), the Initial Additional Agent (for itself and on behalf of the Initial Additional First Lien Secured Parties) and each Additional Agent (for itself and on behalf of the Additional First Lien Secured Parties of the applicable Series) agree as follows:
ARTICLE I

Definitions
SECTION 1.01     Certain Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Credit Agreement or, if defined in the New York UCC, the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below:
Additional Agent” means the collateral agent and the administrative agent and/or trustee (as applicable) or any other similar agent or Person under any Additional First Lien Documents, in each case, together with its successors in such capacity.
Additional First Lien Debt Facility” means one or more debt facilities, commercial paper facilities or indentures for which the requirements of Section 5.13 of this Agreement have been satisfied, in each case with banks, other lenders or trustees, providing for revolving credit loans, term loans, letters of credit, notes or other borrowings, in each case, as amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time; provided that the Credit Agreement shall not constitute an Additional First Lien Debt Facility at any time.
Additional First Lien Documents” means, with respect to any Series of Additional First Lien Obligations, the notes, credit agreements, indentures, security documents and other operative agreements evidencing or governing such Indebtedness, including the Initial Additional First Lien Documents, and each other agreement entered into for the purpose of securing any Series of Additional First Lien Obligations.
Additional First Lien Obligations” means, with respect to any Additional First Lien Debt Facility, (a) all principal of, and interest, fees, and expenses (including, without limitation, any interest, fees, expenses and other amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not allowed or allowable as a claim in any such proceeding) payable with respect to, such Additional First Lien Debt Facility, (b) all other amounts payable to the related Additional First Lien Secured Parties under the related Additional First Lien Documents and (c) any renewals of extensions of the foregoing.
Additional First Lien Secured Party” means, with respect to any Series of Additional First Lien Obligations, the holders of such Additional First Lien Obligations, the Additional Agent with respect thereto, any trustee or agent or any other similar agent or Person therefor under any related Additional First Lien Documents and the beneficiaries of each indemnification obligation undertaken by the Borrower or any Guarantor under any related Additional First Lien Documents.
Agreement” has the meaning assigned to such term in the preamble hereto.
Bankruptcy Code” means Title 11 of the United States Code, as amended, modified or supplemented, from time to time.
Bankruptcy Law” means the Bankruptcy Code and any other federal, state, or foreign law for the relief of debtors, or any arrangement, reorganization, insolvency, moratorium, assignment for the benefit of creditors, any other marshalling of the assets or liabilities of the Borrower or any of its Subsidiaries, or similar law affecting creditors’ rights generally.
Borrower” has the meaning assigned to such term in the preamble hereto.

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.
Collateral” means all assets and properties of the Grantors subject to Liens created pursuant to any First Lien Security Document to secure one or more Series of First Lien Obligations.
Collateral Agent” means (i) in the case of any Credit Agreement Obligations, the First Lien Collateral Agent, (ii) in the case of the Initial Additional First Lien Obligations, the Initial Additional Agent, and (iii) in the case of any Series of Additional First Lien Obligations or Additional First Lien Secured Parties that become subject to this Agreement after the date hereof, the Additional Agent named for such Series in the applicable Joinder Agreement.
Controlling Collateral Agent” means, with respect to any Shared Collateral, (i) until the earlier of (x) the Discharge of First Lien Obligations that are Credit Agreement Obligations and (y) the Non-Controlling Collateral Agent Enforcement Date, the First Lien Collateral Agent and (ii) from and after the earlier of (x) the Discharge of First Lien Obligations that are Credit Agreement Obligations and (y) the Non-Controlling Collateral Agent Enforcement Date, the Major Non-Controlling Collateral Agent.
Controlling Secured Parties” means, with respect to any Shared Collateral, the Series of First Lien Secured Parties whose Collateral Agent is the Controlling Collateral Agent for such Shared Collateral.
Credit Agreement” means that certain Credit Agreement dated as of July 1, 2016, as amended, restated, supplemented, increased or otherwise modified, Refinanced or replaced from time to time, among the Borrower, the Designated Borrowers (as defined therein), the Specified Designated Borrower (as defined therein), the lenders party thereto, the L/C Issuers party thereto and Bank of America, N.A., as administrative agent and as collateral agent.
Credit Agreement Obligations” means the “Obligations” as defined in the Credit Agreement and, to the extent provided for in Article XII of the Security Agreement, the 2023 Senior Notes Obligations (as defined in the Security Agreement).
Credit Agreement Secured Parties” means the “Secured Parties” as defined in the Credit Agreement and, to the extent provided in Article XII of the Security Agreement, the 2023 Senior Notes Holders (as defined in the Security Agreement).
DIP Financing” has the meaning assigned to such term in Section 2.05(b).
DIP Financing Liens” has the meaning assigned to such term in Section 2.05(b).
DIP Lenders” has the meaning assigned to such term in Section 2.05(b).
Discharge” means, with respect to any Shared Collateral and any Series of First Lien Obligations, the date on which such Series of First Lien Obligations is no longer secured by such Shared Collateral in accordance with the terms of the applicable Secured Credit Document(s). The term “Discharged” shall have a corresponding meaning.
Discharge of First Lien Obligations” means, with respect to any Shared Collateral, the Discharge of the applicable First Lien Obligations with respect to such Shared Collateral; provided that a Discharge of First Lien Obligations shall not be deemed to have occurred in connection with a Refinancing of such First Lien Obligations with additional First Lien Obligations secured by such Shared Collateral under an Additional First Lien Document which has been designated in writing by the applicable Collateral Agent (under the Secured Credit Document so Refinanced) or by the Borrower, in each case, to each other Collateral Agent as a “First Lien Obligation” for purposes of this Agreement.
Event of Default” means an “Event of Default” (or any other similarly defined term) as defined in any Secured Credit Document.
First Lien Collateral Agent” has the meaning assigned to such term in the preamble hereto.
First Lien Obligations” means, collectively, (i) the Credit Agreement Obligations, (ii) the Initial Additional First Lien Obligations and (iii) each Series of Additional First Lien Obligations.
First Lien Secured Parties” means (i) the Credit Agreement Secured Parties, (ii) the Initial Additional First Lien Secured Parties and (iii) the Additional First Lien Secured Parties with respect to each Series of Additional First Lien Obligations.
First Lien Security Documents” means the Security Agreement, the other Collateral Documents (as defined in the Credit Agreement) and each other agreement entered into in favor of any Collateral Agent for the purpose of securing any Series of First Lien Obligations.
Grantors” means the Borrower and each other Domestic Subsidiary of the Borrower which has granted a security interest pursuant to any First Lien Security Document to secure any Series of First Lien Obligations (including any Domestic Subsidiary which becomes a party to this Agreement as contemplated by Section 5.16). The Grantors existing on the date hereof are set forth in Annex I hereto.
Impairment” has the meaning assigned to such term in Section 1.03.
Initial Additional Agent” has the meaning assigned to such term in the preamble hereto.
Initial Additional First Lien Documents” means that certain [[Indenture] dated as of [  ], 20[  ], among [the Borrower], [the Guarantors identified therein,] [     ], as [trustee], and [     ], as [paying agent, registrar and transfer agent]] and any notes, security documents and other operative agreements evidencing or governing such Indebtedness, including any agreement entered into for the purpose of securing the Initial Additional First Lien Obligations.
Initial Additional First Lien Obligations” the “[Obligations]” as defined in the Initial Additional First Lien Documents.
Initial Additional First Lien Secured Parties” means the “[Secured Parties]” as defined in the Initial Additional First Lien Documents.
Insolvency or Liquidation Proceeding” means:
(1)    any case or proceeding commenced by or against the Borrower or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Borrower or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Borrower or any other Grantor or any similar case or proceeding relative to the Borrower or any other Grantor or its creditors, as such, in each case whether or not voluntary;
(2)    any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Borrower or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3)    any other case or proceeding of any type or nature in which substantially all claims of creditors of the Borrower or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
Intervening Creditor” shall have the meaning assigned to such term in Section 2.01(a).
Joinder Agreement” means a supplement to this Agreement substantially in the form of Annex II hereof required to be delivered by an Additional Agent to the Controlling Collateral Agent pursuant to Section 5.13 hereto in order to establish an additional Series of Additional First Lien Obligations and become Additional First Lien Secured Parties hereunder.
Major Non-Controlling Collateral Agent” means, with respect to any Shared Collateral, the Collateral Agent (other than the First Lien Collateral Agent) of the Series of First Lien Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of First Lien Obligations (excluding the Series of Credit Agreement Obligations) with respect to such Shared Collateral, but solely to the extent that such Series of First Lien Obligations has a larger aggregate principal amount than the Series of Credit Agreement Obligations then outstanding.
New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.
Non-Controlling Collateral Agent” means, at any time with respect to any Shared Collateral, any Collateral Agent that is not the Controlling Collateral Agent at such time with respect to such Shared Collateral.
Non-Controlling Collateral Agent Enforcement Date” means, with respect to any Non-Controlling Collateral Agent, the date which is 180 days (throughout which 180 day period such Non-Controlling Collateral Agent was the Major Non-Controlling Collateral Agent) after the occurrence of both (i) an Event of Default under and as defined in the Secured Credit Documents under which such Non-Controlling Collateral Agent is the Major Non-Controlling Collateral Agent, but only for so long as such Event of Default is continuing and (ii) the Controlling Collateral Agent’s and each other Collateral Agent’s receipt of written notice from such Non-Controlling Collateral Agent certifying that (x) such Non-Controlling Collateral Agent is the Major Non-Controlling Collateral Agent and that an Event of Default under and as defined in the Secured Credit Documents under which such Non-Controlling Collateral Agent is the Collateral Agent has occurred and is continuing and (y) the First Lien Obligations of the Series with respect to which such Non-Controlling Collateral Agent is the Collateral Agent are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Secured Credit Documents; provided that the Non-Controlling Collateral Agent Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (1) at any time the Controlling Collateral Agent has commenced and is diligently pursuing any enforcement action or (2) at any time the Grantor which has granted a security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
Non-Controlling Secured Parties” means, with respect to any Shared Collateral, the First Lien Secured Parties which are not Controlling Secured Parties with respect to such Shared Collateral.
Officer’s Certificate has the meaning assigned to such term in Section 5.13.
Possessory Collateral” means any Shared Collateral in the possession of any Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession of a Collateral Agent under the terms of the First Lien Security Documents.
Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not allowed or allowable as a claim in any such Insolvency or Liquidation Proceeding.
Proceeds” has the meaning assigned to such term in Section 2.01(a).
Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other Indebtedness or enter alternative financing arrangements, in exchange or replacement for such Indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such Indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” have correlative meanings.
Secured Credit Document” means (i) the Credit Agreement and each other Loan Document (as defined in the Credit Agreement), (ii) each Initial Additional First Lien Document and (iii) each Additional First Lien Document.
Security Agreement” means the “U.S. Security Agreement” as defined in the Credit Agreement.
Senior Class Debt” shall have the meaning assigned to such term in Section 5.13.
Senior Class Debt Parties” shall have the meaning assigned to such term in Section 5.13.
Senior Class Debt Representative” shall have the meaning assigned to such term in Section 5.13.
Senior Lien” means the Liens on the Collateral in favor of the First Lien Secured Parties under the First Lien Security Documents.
Series” means (a) with respect to the First Lien Secured Parties, each of (i) the Credit Agreement Secured Parties (in their capacities as such), (ii) the Initial Additional First Lien Secured Parties (in their capacity as such) and (iii) the Additional First Lien Secured Parties that become subject to this Agreement after the date hereof that are represented by a common Collateral Agent (in its capacity as such for such Additional First Lien Secured Parties) and (b) with respect to any First Lien Obligations, each of (i) the Credit Agreement Obligations, (ii) the Initial Additional First Lien Obligations and (iii) the Additional First Lien Obligations incurred pursuant to any Additional First Lien Debt Facility or any related Additional First Lien Documents, which pursuant to any Joinder Agreement, are to be represented hereunder by a common Collateral Agent (in its capacity as such for such Additional First Lien Obligations).
Shared Collateral” means, at any time, Collateral in which the holders of two or more Series of First Lien Obligations (or their respective Collateral Agents) hold a valid and perfected security interest at such time. If more than two Series of First Lien Obligations are outstanding at any time and the holders of less than all Series of First Lien Obligations hold a valid and perfected security interest in any Collateral at such time, then such Collateral shall constitute Shared Collateral for those Series of First Lien Obligations that hold a valid and perfected security interest in such Collateral at such time and shall not constitute Shared Collateral for any Series which does not have a valid and perfected security interest in such Collateral at such time.
Uniform Commercial Code” or “UCC” means the New York UCC, or the Uniform Commercial Code (or any similar or comparable legislation) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
SECTION 1.02     Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term “or” is not exclusive.
SECTION 1.03     Impairments. It is the intention of the First Lien Secured Parties of each Series that the holders of First Lien Obligations of such Series (and not the First Lien Secured Parties of any other Series) bear the risk of (i) any determination by a court of competent jurisdiction that (x) any of the First Lien Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of First Lien Obligations), (y) any of the First Lien Obligations of such Series do not have an enforceable security interest in any of the Collateral securing any other Series of First Lien Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another Series of First Lien Obligations) on a basis ranking prior to the security interest of such Series of First Lien Obligations but junior to the security interest of any other Series of First Lien Obligations or (ii) the existence of any Collateral for any other Series of First Lien Obligations that is not Shared Collateral for such Series (any such condition referred to in the foregoing clauses (i) or (ii) with respect to any Series of First Lien Obligations, an “Impairment” of such Series). In the event of any Impairment with respect to any Series of First Lien Obligations, the results of such Impairment shall be borne solely by the holders of such Series of First Lien Obligations, and the rights of the holders of such Series of First Lien Obligations (including, without limitation, the right to receive distributions in respect of such Series of First Lien Obligations pursuant to Section 2.01) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such First Lien Obligations subject to such Impairment. Additionally, in the event the First Lien Obligations of any Series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such First Lien Obligations or the First Lien Documents governing such First Lien Obligations shall refer to such obligations or such documents as so modified.
ARTICLE II

Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01     Priority of Claims.
(a)    Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Controlling Collateral Agent or any First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower (including any adequate protection payments) or any other Grantor or any First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any Collateral Agent or any First Lien Secured Party, proceeds of any such distribution and any such payment (all such payments, distributions, and proceeds of any sale, collection or other liquidation of any Shared Collateral and all such payments and proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after the Discharge of all First Lien Obligations, to the Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely for purposes of this Section 2.01(a) and not for the purposes of the Credit Agreement or any Additional First Lien Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest allowable under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First Lien Obligations, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First Lien Obligations (such third party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a).
(b)    It is acknowledged that the First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First Lien Secured Parties of any Series.
(c)    Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03 and the penultimate sentence of Section 2.01(a)), each First Lien Secured Party hereby agrees that (i) the Liens securing each Series of First Lien Obligations on any Shared Collateral shall be of equal priority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein.
(d)    Notwithstanding anything in this Agreement or any other First Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Collateral Agent pursuant to Section 2.03(g) of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in such Section of the Credit Agreement and will not constitute Shared Collateral.
SECTION 2.02     Actions with Respect to Shared Collateral; Prohibition on Contesting Liens.
(a)    With respect to any Shared Collateral, (i) only the Controlling Collateral Agent shall act or refrain from acting with respect to the Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral) and (ii) no Non-Controlling Collateral Agent or other Non-Controlling Secured Party shall or shall instruct the Controlling Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), whether under any First Lien Security Document, applicable law or otherwise, it being agreed that only the Controlling Collateral Agent shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, any Collateral Agent or any other First Lien Secured Party may file a proof of claim or statement of interest with respect to the First Lien Obligations owed to the First Lien Secured Parties; (ii) any Collateral Agent or any other First Lien Secured Party may take any action to preserve or protect the validity and enforceability of the Liens granted in favor of First Lien Secured Parties, provided that no such action is, or could reasonably be expected to be, (A) adverse to the Liens granted in favor of the Controlling Secured Parties or the rights of the Controlling Collateral Agent or any other Controlling Secured Parties to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement; and (iii) any Collateral Agent or any other First Lien Secured Party may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims or Liens of such First Lien Secured Party, including any claims secured by the Shared Collateral, in each case, to the extent not inconsistent with the terms of this Agreement. Notwithstanding the equal priority of the Liens on the Shared Collateral, the Controlling Collateral Agent may deal with the Shared Collateral as if such Controlling Collateral Agent had a senior Lien on such Collateral. No Non-Controlling Collateral Agent or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the Controlling Collateral Agent or Controlling Secured Party or any other exercise by the Controlling Collateral Agent or Controlling Secured Party of any rights and remedies relating to the Shared Collateral. The foregoing shall not be construed to limit the rights and priorities of any First Lien Secured Party or Collateral Agent with respect to any Collateral not constituting Shared Collateral.
(b)    Each Collateral Agent and the First Lien Secured Parties for which it is acting hereunder agree to be bound by the provisions of this Agreement.
(c)    Each of the First Lien Secured Parties agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any of the First Lien Secured Parties in all or any part of the Collateral, the allowability of any claims asserted with respect thereto or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Collateral Agent or any other First Lien Secured Party to enforce this Agreement.
SECTION 2.03     No Interference; Payment Over.
(a)    Each First Lien Secured Party agrees that (i) it will not challenge, or support any other Person in challenging, in any proceeding (including any Insolvency or Liquidation Proceeding) the validity or enforceability of any First Lien Obligations of any Series or any First Lien Security Document or the validity, attachment, perfection or priority of any Lien under any First Lien Security Document or the allowability of any claims asserted with respect thereto, or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; (ii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the Controlling Collateral Agent; (iii) it will not institute in any Insolvency or Liquidation Proceeding or other proceeding any claim against the Controlling Collateral Agent or any other First Lien Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Shared Collateral, and none of the Controlling Collateral Agent or any other First Lien Secured Party shall be liable for any action taken or omitted to be taken by the Controlling Collateral Agent or other First Lien Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement; (iv) it will not seek, and hereby waives any right, to have any Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral; and (v) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Collateral Agent or any other First Lien Secured Party to enforce this Agreement.
(b)    Each First Lien Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize any proceeds or payment in respect of any such Shared Collateral, pursuant to any First Lien Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies (including pursuant to any intercreditor agreement), at any time prior to the Discharge of each of the First Lien Obligations, then it shall hold such Shared Collateral, proceeds or payment in trust for the other First Lien Secured Parties that have a security interest in such Shared Collateral and promptly transfer such Shared Collateral, Proceeds or payment, as the case may be, to the Controlling Collateral Agent, to be distributed in accordance with the provisions of Section 2.01 hereof.
SECTION 2.04     Automatic Release of Liens; Amendments to First Lien Security Documents.
(a)    If, at any time the Controlling Collateral Agent forecloses upon or otherwise exercises remedies against any Shared Collateral resulting in a sale or disposition thereof, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of each Collateral Agent for the benefit of each Series of First Lien Secured Parties upon such Shared Collateral will automatically be released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01 hereof.
(b)    Each First Lien Secured Party agrees that each Collateral Agent may enter into any amendment to any First Lien Security Document that does not violate this Agreement.
(c)    Each Collateral Agent agrees to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the Controlling Collateral Agent to evidence and confirm any release of Shared Collateral provided for in this Section.
SECTION 2.05.     Certain Agreements with Respect to Bankruptcy or Insolvency Proceedings.
(a)    This Agreement shall continue in full force and effect notwithstanding the commencement of any Insolvency or Liquidation Proceeding under the Bankruptcy Code or any other Bankruptcy Law or similar law by or against the Borrower or any of its Subsidiaries.
(b)    If the Borrower and/or any other Grantor shall become subject to an Insolvency or Liquidation Proceeding and shall, as debtor(s)-in-possession, move for approval of financing (“DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law and/or the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, each First Lien Secured Party agrees that it will raise no objection to any such financing or to the Liens on the Shared Collateral securing the same (“DIP Financing Liens”) and/or to any use of cash collateral that constitutes Shared Collateral unless the Controlling Collateral Agent or any Controlling Secured Party, shall then oppose or object to such DIP Financing or such DIP Financing Liens and/or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any First Lien Secured Parties constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the First Lien Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the First Lien Secured Parties of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-a-vis all the other First Lien Secured Parties (other than any Liens of the First Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of such Insolvency or Liquidation Proceeding, (B) the First Lien Secured Parties of each Series are granted Liens on any additional collateral pledged to any First Lien Secured Parties as adequate protection or otherwise in connection with such DIP Financing and/or use of cash collateral, with the same priority vis-a-vis the First Lien Secured Parties (other than any Liens of the First Lien Secured Parties constituting DIP Financing Liens) as set forth in this Agreement, (C) if any amount of such DIP Financing and/or cash collateral is applied to repay any of the First Lien Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and (D) if any First Lien Secured Parties are granted adequate protection with respect to First Lien Obligations subject hereto, including in the form of periodic payments, in connection with such DIP Financing and/or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01 of this Agreement; provided that the First Lien Secured Parties of each Series shall have a right to object to the grant of a Lien to secure the DIP Financing over any Collateral subject to Liens in favor of the First Lien Secured Parties of such Series or its Collateral Agent that shall not constitute Shared Collateral; and provided, further, that the First Lien Secured Parties receiving adequate protection shall not object to any other First Lien Secured Party receiving adequate protection comparable to any adequate protection granted to such First Lien Secured Parties in connection with a DIP Financing and/or use of cash collateral.
SECTION 2.06.     Reinstatement. In the event that any of the First Lien Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement or avoidance of a preference or fraudulent transfer, under the Bankruptcy Code, any Bankruptcy Law or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such First Lien Obligations shall again have been paid in full in cash.
SECTION 2.07.     Insurance. As between the First Lien Secured Parties, the Controlling Collateral Agent shall have the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral.
SECTION 2.08.     Refinancings. The First Lien Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the Refinancing transaction under any Secured Credit Document) of any First Lien Secured Party of any other Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Collateral Agent of the holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of the holders of such Refinancing indebtedness.
SECTION 2.09.     Possessory Collateral Agent as Gratuitous Bailee for Perfection.
(a)    The Controlling Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Shared Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other First Lien Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in each case, subject to the terms and conditions of this Section 2.09; provided that at any time after the Discharge of the First Lien Obligations of the Series for which the Controlling Collateral Agent is acting, the Controlling Collateral Agent shall (at the sole cost and expense of the Grantors), promptly deliver all Possessory Collateral to the Controlling Collateral Agent (after giving effect to the Discharge of such First Lien Obligations) together with any necessary endorsements reasonably requested by the Controlling Collateral Agent (or make such other arrangements as shall be reasonably requested by the Controlling Collateral Agent to allow the Controlling Collateral Agent to obtain control of such Possessory Collateral). Pending delivery to the Controlling Collateral Agent, each other Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee for the benefit of each other First Lien Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in each case, subject to the terms and conditions of this Section 2.09.
(b)    The duties or responsibilities of the Controlling Collateral Agent and each other Collateral Agent under this Section 2.09 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other First Lien Secured Party for purposes of perfecting the Lien held by such First Lien Secured Parties therein.
ARTICLE III

Existence and Amounts of Liens and Obligations
SECTION 3.01.     Determinations with Respect to Amounts of Liens and Obligations. Whenever any Collateral Agent shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Obligations of any Series, or the Shared Collateral subject to any Lien securing the First Lien Obligations of any Series, it may request that such information be furnished to it in writing by each other Collateral Agent and shall be entitled to make such determination on the basis of the information so furnished; provided, however, that if any Collateral Agent shall fail or refuse reasonably promptly to provide the requested information, the requesting Collateral Agent shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Borrower. Each Collateral Agent may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any First Lien Secured Party or any other Person as a result of such determination.
ARTICLE IV

The Controlling Collateral Agent
SECTION 4.01.     Appointment and Authority.
(a)    Each of the First Lien Secured Parties hereby irrevocably appoints and authorizes the Controlling Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Controlling Collateral Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Controlling Collateral Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Controlling Collateral Agent pursuant to the applicable Senior Credit Documents for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under any of the First Lien Security Documents, or for exercising any rights and remedies thereunder at the direction of the Controlling Collateral Agent, shall be entitled to the benefits of all provisions of this Article IV and Article IX of the Credit Agreement and the equivalent provision of any Initial Additional First Lien Document and any Additional First Lien Document (as though such co-agents, sub-agents and attorneys-in-fact were the “Collateral Agent” named therein) as if set forth in full herein with respect thereto. Without limiting the foregoing, each of the First Lien Secured Parties, and each Collateral Agent, hereby agrees to provide such cooperation and assistance as may be reasonably requested by the Controlling Collateral Agent to facilitate and effect actions taken or intended to be taken by the Controlling Collateral Agent pursuant to this Article IV, such cooperation to include execution and delivery of notices, instruments and other documents as are reasonably deemed necessary by the Controlling Collateral Agent to effect such actions, and joining in any action, motion or proceeding initiated by the Controlling Collateral Agent for such purposes.
(b)    Each Non-Controlling Secured Party acknowledges and agrees that the Controlling Collateral Agent shall be entitled, for the benefit of the First Lien Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the First Lien Security Documents, without regard to any rights to which the holders of the Non-Controlling Secured Obligations would otherwise be entitled as a result of such Non-Controlling Secured Obligations. Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Controlling Collateral Agent or any other First Lien Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of the First Lien Secured Parties waives any claim it may now or hereafter have against the Controlling Collateral Agent or the Collateral Agent for any other Series of First Lien Obligations or any other First Lien Secured Party of any other Series arising out of (i) any actions that do not violate this Agreement which any Collateral Agent or any First Lien Secured Party takes or omits to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the First Lien Obligations from any account debtor, guarantor or any other party) in accordance with the First Lien Security Documents or any other agreement related thereto or to the collection of the First Lien Obligations or the valuation, use, protection or release of any security for the First Lien Obligations, (ii) any election by any Collateral Agent or any holders of First Lien Obligations, in any Insolvency or Liquidation Proceeding of the application of Section 1111(b) of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law or (iii) subject to Section 2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law by, any Grantor or any of its Subsidiaries, as debtor-in-possession.
SECTION 4.02.     Rights as a First Lien Secured Party.
(a)    The Person serving as the Controlling Collateral Agent hereunder shall have the same rights and powers in its capacity as a First Lien Secured Party under any Series of First Lien Obligations that it holds as any other First Lien Secured Party of such Series and may exercise the same as though it were not the Controlling Collateral Agent and the term “First Lien Secured Party” or “First Lien Secured Parties” or (as applicable) “Credit Agreement Secured Party”, “Credit Agreement Secured Parties,” “Initial Additional First Lien Secured Party,” “Initial Additional First Lien Secured Parties,” “Additional First Lien Secured Party” or “Additional First Lien Secured Parties” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Controlling Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Grantors or any Subsidiary or other Affiliate thereof as if such Person were not the Controlling Collateral Agent hereunder and without any duty to account therefor to any other First Lien Secured Party.
SECTION 4.03.     Exculpatory Provisions. The Controlling Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, the Controlling Collateral Agent:
(i)    shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby; provided that the Controlling Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Controlling Collateral Agent to liability or that is contrary to this Agreement or applicable law;
(iii)    shall not, except as expressly set forth herein, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to a Grantor or any of its Affiliates that is communicated to or obtained by the Person serving as the Controlling Collateral Agent or any of its Affiliates in any capacity;
(iv)    shall not be liable for any action taken or not taken by it (1) in the absence of its own gross negligence or willful misconduct or (2) in reliance on a certificate of an authorized officer of the Borrower stating that such action is permitted by the terms of this Agreement. The Controlling Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Series of First Lien Obligations unless and until notice describing such Event Default and referencing applicable agreement is given to the Controlling Collateral Agent;
(v)    shall not be responsible for or have any duty to ascertain or inquire into (1) any statement, warranty or representation made in or in connection with this Agreement or any other First Lien Security Document, (2) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (3) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (4) the validity, enforceability, effectiveness or genuineness of this Agreement, any other First Lien Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the First Lien Security Documents, (5) the value or the sufficiency of any Collateral for any Series of First Lien Obligations, or (6) the satisfaction of any condition set forth in any Secured Credit Document, other than to confirm receipt of items expressly required to be delivered to the Controlling Collateral Agent; and
(vi)    need not segregate money held hereunder from other funds except to the extent required by law. The Controlling Collateral Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing.
SECTION 4.04. Collateral and Guaranty Matters. Each of the First Lien Secured Parties irrevocably authorizes the applicable Collateral Agent, at its option and in its discretion, to release any Lien on any property granted to or held by the Collateral Agent under any First Lien Security Document in accordance with Section 2.04 or upon receipt of a written request from the Borrower stating that the releases of such Lien is permitted by the terms of each then extant Secured Credit Document.

ARTICLE V

Miscellaneous
SECTION 5.01.     Notices. All notices and other communications provided for herein (including, but not limited to, all the directions and instructions to be provided to the Controlling Collateral Agent herein by the First Lien Secured Parties) shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
If to the Borrower or any Grantor, to it at:
WEX INC.
97 Darling Avenue
South Portland, ME 04106
Attention: Roberto Simon, Chief Financial Officer
Facsimile No.:
Telephone:
Email:

With a copy to:

Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Attention: Justin Ochs
Telephone:
Email:

1.    if to the First Lien Collateral Agent, to it at:
Bank of America, N.A.,
as First Lien Collateral Agent
[                ]
Attention: [            ]
Facsimile No.: [        ]
Telephone: [        ]
E-mail: [            ]

(c)    if to any other Collateral Agent, to it at the address set forth in the applicable Joinder Agreement.
Any party hereto may change its address, fax number or email address for notices and other communications hereunder by notice to the other parties hereto. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and, may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth above or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties. As agreed to in writing among the Controlling Collateral Agent and each other Collateral Agent from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person.
SECTION 5.02.     Waivers; Amendment; Joinder Agreements.
(a)    No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b)    Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each Collateral Agent (and with respect to any such termination, waiver, amendment or modification which by the terms of this Agreement requires the Borrower’s consent or which increases the obligations or reduces the rights of the Borrower or any other Grantor, with the consent of the Borrower).
(c)    Notwithstanding the foregoing, without the consent of any First Lien Secured Party, any Additional Agent may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 5.13 of this Agreement and upon such execution and delivery, such Additional Agent and the Additional First Lien Secured Parties and Additional First Lien Obligations of the Series for which such Additional Agent is acting shall be subject to the terms hereof.
(d)    Notwithstanding the foregoing, without the consent of any other Collateral Agent or First Lien Secured Party, the Controlling Collateral Agent may effect amendments and modifications to this Agreement to the extent necessary to reflect any incurrence of any Additional First Lien Obligations in compliance with the Credit Agreement, any Initial Additional First Lien Documents and any Additional First Lien Documents.
SECTION 5.03.     Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other First Lien Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.
SECTION 5.04.     Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 5.05.     Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any Secured Credit Document shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other state laws based on the Uniform Electronic Transactions Act, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
SECTION 5.06     Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 5.07.     Authorization. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement. The First Lien Collateral Agent represents and warrants that this Agreement is binding upon the Credit Agreement Secured Parties. The Initial Additional Agent represents and warrants that this Agreement is binding upon the Initial Additional First Lien Secured Parties.
SECTION 5.08.     Submission to Jurisdiction Waivers; Consent to Service of Process. Each Collateral Agent, on behalf of itself and the First Lien Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
(a)    submits for itself and its property in any legal action or proceeding relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York sitting in New York County, the courts of the United States of America for the Southern District of New York, sitting in New York County, and appellate courts from any thereof;
(b)    consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient forum and agrees not to plead or claim the same;
(c)    agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Collateral Agent) at the address referred to in 5.01;
(d)    agrees that nothing herein shall affect the right of any other party hereto (or any First Lien Secured Party) to effect service of process in any other manner permitted by law or shall limit the right of any party hereto (or any First Lien Secured Party) to sue in any other jurisdiction; and
(e)    waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 5.08 any special, exemplary, punitive or consequential damages.
SECTION 5.09.     GOVERNING LAW; WAIVER OF JURY TRIAL.
(A)    THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(B)    EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 5.10.     Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 5.11.     Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the other First Lien Security Documents or Additional First Lien Documents, the provisions of this Agreement shall control.
SECTION 5.12.     Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties in relation to one another. None of the Borrower, any other Grantor or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement (provided that nothing in this Agreement (other than Section 2.04, 2.05 or 2.09) is intended to or will amend, waive or otherwise modify the provisions of the Credit Agreement or any Additional First Lien Documents), and neither the Borrower nor any other Grantor may rely on the terms hereof (other than Section 2.04, 2.05 or 2.09). Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due and payable in accordance with their terms.
SECTION 5.13.     Additional First Lien Obligations. To the extent, but only to the extent permitted by the provisions of the then extant Credit Agreement, the Initial Additional First Lien Documents and the Additional First Lien Documents, the Borrower may incur Additional First Lien Obligations. Any such additional class or series of Additional First Lien Obligations (the “Senior Class Debt”) may be secured by a Lien and may be guaranteed by the Grantors on a pari passu basis, in each case under and pursuant to the First Lien Documents, if and subject to the condition that the Collateral Agent of any such Senior Class Debt (each, a “Senior Class Debt Representative”), acting on behalf of the holders of such Senior Class Debt (such Collateral Agent and holders in respect of any Senior Class Debt being referred to as the “Senior Class Debt Parties”), becomes a party to this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of the immediately succeeding paragraph.
In order for a Senior Class Debt Representative to become a party to this Agreement,
(i)    such Senior Class Debt Representative, the Controlling Collateral Agent and each Grantor shall have executed and delivered an instrument substantially in the form of Annex II (with such changes as may be reasonably approved by the Controlling Collateral Agent and such Senior Class Representative) pursuant to which such Senior Class Debt Representative becomes a Collateral Agent and Additional Agent hereunder, and the Senior Class Debt in respect of which such Senior Class Debt Representative is the Collateral Agent and the related Senior Class Debt Parties become subject hereto and bound hereby;
(ii)    the Borrower shall have delivered to the Controlling Collateral Agent true and complete copies of each of the Additional First Lien Documents relating to such Senior Class Debt, certified as being true and correct by a Responsible Officer of the Borrower;
(iii)    the Borrower shall have delivered to the Controlling Collateral Agent a certificate of an appropriate officer (“Officer’s Certificate”) stating that such Additional First Lien Obligations are permitted by each applicable Secured Credit Document to be incurred, or to the extent a consent is otherwise required to permit the incurrence of such Additional First Lien Obligations under any Secured Credit Document, each Grantor has obtained the requisite consent; and
(iv)    the Additional First Lien Documents, as applicable, relating to such Senior Class Debt shall provide, in a manner reasonably satisfactory to the Controlling Collateral Agent, that each Senior Class Debt Party with respect to such Senior Class Debt will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Senior Class Debt.
SECTION 5.14     Integration. This Agreement together with the other Secured Credit Documents and the First Lien Security Documents represents the entire agreement of each of the Grantors and the First Lien Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, any Collateral Agent or any other First Lien Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Secured Credit Documents or the First Lien Security Documents.
SECTION 5.15     Information Concerning Financial Condition of the Borrower and the other Grantors. The Controlling Collateral Agent, the other Collateral Agents and the Secured Parties shall each be responsible for keeping themselves informed of (a) the financial condition of the Borrower and the other Grantors and all endorsers or guarantors of the First Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations. The Controlling Collateral Agent, the other Collateral Agents and the Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that the Controlling Collateral Agent, any other Collateral Agent or any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any other party, it shall be under no obligation to (i) make, and Controlling Collateral Agent, the other Collateral Agents and the Secured Parties shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any additional information or to provide any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
SECTION 5.16.     Additional Grantors. The Borrower agrees that, if any Subsidiary of the Borrower shall become a Grantor after the date hereof, it will promptly cause such Subsidiary to become party hereto by executing and delivering an instrument in the form of Annex III hereto. Upon such execution and delivery, such Subsidiary will become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of such instrument shall not require the consent of any other party hereunder, and will be acknowledged by the Controlling Collateral Agent. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 5.17.     Further Assurances. Each Collateral Agent, on behalf of itself and each First Lien Secured Party under the applicable Credit Agreement, Initial Additional First Lien Documents or Additional First Lien Debt Facility, agrees that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate the terms of, and the Lien priorities contemplated by, this Agreement.
SECTION 5.18.     First Lien Collateral Agent and Initial Additional Agent. It is understood and agreed that (a) the First Lien Collateral Agent is entering into this Agreement in its capacity as administrative agent under the Credit Agreement and the provisions of Article IX of the Credit Agreement applicable to it as administrative agent thereunder shall also apply to it as Controlling Collateral Agent hereunder and (b) the Initial Additional Agent is entering in this Agreement in its capacity as Collateral Agent under the Initial Additional First Lien Documents and the provisions of the Initial Additional First Lien Documents granting or extending any rights, protections, privileges, indemnities and immunities to the Collateral Agent thereunder shall also apply to the Initial Additional Agent hereunder.
For the avoidance of doubt, the parties hereto acknowledge that in no event shall the First Lien Collateral Agent or Initial Additional Agent be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether any such party has been advised of the likelihood of such loss or damage and regardless of the form of action.



IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
BANK OF AMERICA, N.A.,
as First Lien Collateral Agent and Controlling Collateral Agent
By:    _______________________________________
    Name:
    Title:
[ ]
as Initial Additional Agent
By:    _______________________________________
    Name:
    Title
WEX INC.
By:    _______________________________________
    Name:
    Title:

[THE GRANTORS LISTED ON ANNEX I HERETO],
By:    _______________________________________
    Name:
    Title:



ANNEX I

Grantors
FLEETONE HOLDINGS, LLC
TRANSPLATINUM SERVICE, LLC
FLEETONE, L.L.C.
WRIGHT EXPRESS HOLDINGS 2, LLC
WRIGHT EXPRESS HOLDINGS 3, LLC
WEX HEALTH, INC.
ELECTRONIC FUNDS SOURCE LLC
EFS PAYMENTS LLC
OTR TOPCO LLC
OTR HOLDINGS LLC
TRUCKERS B2B, LLC
OTR BLOCKER LLC
TCH CANADA INC.
WRIGHT EXPRESS FUELING SOLUTIONS, INC.
WEX PAYMENTS INC.
PO HOLDING LLC
DISCOVERY BENEFITS, LLC
WEX FLEET US LLC

ANNEX II

[FORM OF] JOINDER NO. [ ] dated as of [     ], 20[ ] (this “Joinder”) to the FIRST LIEN INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (the “First Lien Intercreditor Agreement”), among WEX INC., a Delaware corporation (the “Borrower”), the other Grantors (as defined therein) party thereto, BANK OF AMERICA, N.A., as collateral agent for the Credit Agreement Secured Parties (in such capacity, the “First Lien Collateral Agent”) and [INSERT NAME], as agent for the Initial Additional First Lien Secured Parties (in such capacity and together with its successors in such capacity, the “Initial Additional Agent”) and each Additional Agent from time to time party thereto.

A.    Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the First Lien Intercreditor Agreement.
B.    As a condition to the ability of the Borrower or any Subsidiary of the Borrower to incur Additional First Lien Obligations and to secure such Senior Class Debt with the Senior Lien and to have such Senior Class Debt guaranteed by the Grantors on a senior basis, in each case under and pursuant to the Additional First Lien Documents, the Senior Class Debt Representative in respect of such Senior Class Debt is required to become a Collateral Agent under, and such Senior Class Debt and the Senior Class Debt Parties in respect thereof are required to become subject to and bound by, the First Lien Intercreditor Agreement. Section 5.13 of the First Lien Intercreditor Agreement provides that such Senior Class Debt Representative may become a Collateral Agent under, and such Senior Class Debt and such Senior Class Debt Parties may become subject to and bound by, the First Lien Intercreditor Agreement, upon the execution and delivery by the Senior Class Representative of an instrument in the form of this Joinder and the satisfaction of the other conditions set forth in Section 5.13 of the First Lien Intercreditor Agreement. The undersigned Senior Class Debt Representative (the “New Collateral Agent”) is executing this Joinder in accordance with the requirements of the First Lien Intercreditor Agreement.
Accordingly, the Controlling Collateral Agent and the New Collateral Agent agree as follows:
SECTION 1.    In accordance with Section 5.13 of the First Lien Intercreditor Agreement, the New Collateral Agent by its signature below becomes a Collateral Agent and Additional Agent under, and the related Senior Class Debt and Senior Class Debt Parties become subject to and bound by, the First Lien Intercreditor Agreement with the same force and effect as if the New Collateral Agent had originally been named therein as a Collateral Agent, and the New Collateral Agent, on behalf of itself and such Senior Class Debt Parties, hereby agrees to all the terms and provisions of the First Lien Intercreditor Agreement applicable to it as a Collateral Agent and to the Senior Class Debt Parties that it represents as Additional First Lien Secured Parties. Each reference to a “Collateral Agent” or an “Additional Agent” in the First Lien Intercreditor Agreement shall be deemed to include the New Collateral Agent. The First Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2.    The New Collateral Agent represents and warrants to the Controlling Collateral Agent and the other First Lien Secured Parties that (i) it has full power and authority to enter into this Joinder, in its capacity as [agent] [trustee], (ii) this Joinder has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Additional First Lien Documents relating to such Senior Class Debt provide that, upon the New Collateral Agent’s entry into this Agreement, the Senior Class Debt Parties in respect of such Senior Class Debt will be subject to and bound by the provisions of the First Lien Intercreditor Agreement as Additional First Lien Secured Parties.
SECTION 3.    This Joinder may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Joinder shall become effective when the Collateral Agent shall have received a counterpart of this Joinder that bears the signature of the New Collateral Agent. Delivery of an executed signature page to this Joinder by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Joinder.
SECTION 4.    Except as expressly supplemented hereby, the First Lien Intercreditor Agreement shall remain in full force and effect.
SECTION 5.    THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.    In case any one or more of the provisions contained in this Joinder should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the First Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.    All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the First Lien Intercreditor Agreement. All communications and notices hereunder to the New Collateral Agent shall be given to it at the address set forth below its signature hereto.
SECTION 8.    The Borrower agrees to reimburse the Controlling Collateral Agent for its reasonable out-of-pocket expenses in connection with this Joinder, including the reasonable fees, other charges and disbursements of counsel for the Controlling Collateral Agent.
IN WITNESS WHEREOF, the New Collateral Agent and the Controlling Collateral Agent have duly executed this Joinder to the First Lien Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW COLLATERAL AGENT], as
[ ] for the holders of
[                                  ],
By:    _______________________________________
    Name:
    Title:
Address for notices:

    _______________________________________

    _______________________________________
attention of: _____________________________
Telecopy: _______________________________
Acknowledged by:

[___________________],
as Controlling Collateral Agent


By:    ________________________________
    Name:
    Title:


WEX INC.
By:    _____________________________

    Name:

    Title:

[THE GRANTORS
LISTED ON SCHEDULE I HERETO]


By:    ________________________________
    Name:
    Title:



Schedule I to the
Joinder to the
First Lien Intercreditor Agreement
Grantors
[    ]


ANNEX III


[FORM OF] SUPPLEMENT NO. [ ] dated as of [ ], 20[ ] (this “Supplement”) to the FIRST LIEN INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (the “First Lien Intercreditor Agreement”), among WEX INC., a Delaware corporation (the “Borrower”), the other Grantors (as defined therein) party thereto, BANK OF AMERICA, N.A., as collateral agent for the Credit Agreement Secured Parties (in such capacity, the “First Lien Collateral Agent”) and [INSERT NAME], as agent for the Initial Additional First Lien Secured Parties (in such capacity and together with its successors in such capacity, the “Initial Additional Agent”) and each Additional Agent from time to time party thereto.

A.    Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the First Lien Intercreditor Agreement.
B.    The Grantors have entered into the First Lien Intercreditor Agreement. Pursuant to certain Secured Credit Documents, certain newly acquired or organized Subsidiaries of the Borrower are required to enter into the First Lien Intercreditor Agreement. Section 5.16 of the First Lien Intercreditor Agreement provides that such Subsidiaries may become party to the First Lien Intercreditor Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Grantor”) is executing this Supplement in accordance with the requirements of the Credit Agreement, the Initial Additional First Lien Documents and Additional First Lien Documents.
Accordingly, the Controlling Collateral Agent and the New Grantor agree as follows:
SECTION 1.    In accordance with Section 5.16 of the First Lien Intercreditor Agreement, the New Grantor by its signature below becomes a Grantor under the First Lien Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor, and the New Grantor hereby agrees to all the terms and provisions of the First Lien Intercreditor Agreement applicable to it as a Grantor thereunder. Each reference to a “Grantor” in the First Lien Intercreditor Agreement shall be deemed to include the New Grantor. The First Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2.    The New Grantor represents and warrants to the Controlling Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
SECTION 3.    This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Controlling Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Grantor. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4.    Except as expressly supplemented hereby, the First Lien Intercreditor Agreement shall remain in full force and effect.
SECTION 5.    THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.    In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the First Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.    All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the First Lien Intercreditor Agreement. All communications and notices hereunder to the New Grantor shall be given to it in care of the Borrower as specified in the First Lien Intercreditor Agreement.
SECTION 8.    The Borrower agrees to reimburse the Controlling Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Controlling Collateral Agent.
IN WITNESS WHEREOF, the New Grantor, and the Controlling Collateral Agent have duly executed this Supplement to the First Lien Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW GRANTOR],
By:    ________________________________________
    Name:
    Title:

Acknowledged by:

[_________________], as Controlling Collateral Agent,

By:    ________________________________
    Name:
    Title:




Annex II-A-5


Document
Execution Version
Exhibit 10.2
NINTH AMENDMENT TO CREDIT AGREEMENT
NINTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of June 26, 2020, by and among WEX INC., a Delaware corporation (the “Company”), WRIGHT EXPRESS INTERNATIONAL HOLDINGS LIMITED, as a Designated Borrower (as defined in the Existing Credit Agreement referred to below), WEX CARD HOLDINGS AUSTRALIA PTY LTD. (the “Specified Designated Borrower” and, together with the Company and the Designated Borrower, the “Amendment Loan Parties”), BANK OF AMERICA, N.A., as the Administrative Agent (as defined in the Existing Credit Agreement referred to below) and the Lenders (as defined in the Existing Credit Agreement referred to below) party hereto.
W I T N E S S E T H:
WHEREAS, the Company, the Designated Borrowers from time to time party thereto, the Specified Designated Borrower, the Lenders from time to time party thereto and the Administrative Agent are party to that certain Credit Agreement, dated as of July 1, 2016 (as amended as of July 3, 2017, October 30, 2017, January 17, 2018, August 24, 2018, January 18, 2019, February 27, 2019, May 17, 2019, November 19, 2019 and February 10, 2020 and as it may be further amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”);
WHEREAS, Section 10.01 of the Existing Credit Agreement permits the Company to amend certain provisions of the Existing Credit Agreement with the written consent of the Required Lenders, the Required Financial Covenant Lenders or each affected Lender, as applicable;
WHEREAS, the parties hereto wish to amend the Existing Credit Agreement on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Existing Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”).
SECTION 2. Amendments.
(a) Subject to Section 2(b) below with respect to the amendment to clause (a)(iii)(x) of the definition of the “Consolidated Leverage Ratio” of the Amended Credit Agreement (such amendment, the “100% Financial Covenant Lender Amendment” and all other amendments referred to herein, the “Other Amendments”), effective as of the Ninth Amendment Effective Date, the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto.
(b) Effective as of the 100% Financial Covenant Lender Amendment Effective Date, the Existing Credit Agreement is hereby amended to include the 100% Financial Covenant Lender Amendment.






(c) Effective as of the Ninth Amendment Effective Date, Exhibit E to the Existing Credit Agreement is hereby replaced in its entirety as set forth on Exhibit B hereto.
(d) The amendments set forth in the Amended Credit Agreement shall supersede the amendments to be set forth in the Amended Credit Agreement (as defined in the Eighth Amendment to the Credit Agreement dated as of February 10, 2020 (the “Eighth Amendment”)) and the amendments to be set forth in the Amended Credit Agreement (as defined in the Eighth Amendment) shall not become effective on the Eighth Amendment Effective Date (as defined in the Eighth Amendment) (it being understood that the fees set forth in Sections 3(b) and 3(c) of the Eighth Amendment shall nevertheless be due and payable by the Company upon satisfaction of the condition set forth in Section 3(e) of the Eighth Amendment).
SECTION 3. Conditions to Effectiveness of Other Amendments. The effectiveness of the Other Amendments is subject to satisfaction of the following conditions precedent (the date of such satisfaction being the “Ninth Amendment Effective Date”):
(a) (i) each of the Amendment Loan Parties shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) the Lenders constituting the Required Financial Covenant Lenders and the Required Lenders shall have executed and delivered a counterpart of this Amendment to the Administrative Agent, (iii) each Domestic Subsidiary Guarantor shall have executed an acknowledgement and reaffirmation in the form attached hereto and (iv) the Administrative Agent shall have executed a counterpart of this Amendment;
(b) the representations and warranties of the Amendment Loan Parties contained in Section 5 of this Amendment shall be true and correct on and as of the Ninth Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to an earlier date, it shall be true and correct as of such earlier date;
(c) immediately prior to giving effect to and immediately after giving effect to the Ninth Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received a certificate of the Company signed by a Responsible Officer thereof certifying that the conditions set forth in Sections 3(b) and 3(c) hereof have been satisfied;
(e) the Company shall have paid to the Administrative Agent, for the account of each Term A-3 Lender and Revolving Credit Lender that executes and delivers a counterpart of this Amendment prior to 5:00 p.m. (New York City time) on June 26, 2020 (to the extent such Term A-3 Lender or Revolving Credit Lender is a Lender on the Ninth Amendment Effective Date) (the “Ninth Amendment Signature Deadline”), a consent fee equal to 0.25% of the aggregate principal amount of each such Lender’s Term A-3 Loans and Revolving Credit Commitments as of the date hereof; and
(f) all expenses of the Administrative Agent required to be paid by the Company pursuant to the Existing Credit Agreement shall have been paid to the extent an invoice has been received prior to the date hereof.
It is understood and agreed that the Ninth Amendment Effective Date may occur with or without the occurrence of the 100% Financial Covenant Lender Amendment Effective Date, so long as the conditions specified above for the Other Amendments are satisfied.
2



SECTION 4. Conditions to Effectiveness of 100% Financial Covenant Lender Amendment. The effectiveness of the 100% Financial Covenant Lender Amendment is subject to satisfaction of the following conditions precedent (the date of such satisfaction being the “100% Financial Covenant Lender Amendment Effective Date”):
(a) the Ninth Amendment Effective Date shall have occurred;
(b) each of the Revolving Credit Lenders and Term A-3 Lenders shall have executed and delivered a counterpart of this Amendment to the Administrative Agent (it being understood that each Lender party hereto on the Ninth Amendment Effective Date pursuant to Section 3(a) shall be deemed to have satisfied this Section 4(b) with respect to such Lender’s Term A-3 Loans and/or Revolving Credit Commitments that are outstanding on the Ninth Amendment Effective Date); and
(c) the Company shall have paid to the Administrative Agent, for the account of each Term A-3 Lender and Revolving Credit Lender that executes and delivers a counterpart of this Amendment after the Ninth Amendment Signature Deadline and on or prior to the 100% Financial Covenant Lender Amendment Effective Date a consent fee equal to 0.25% of the aggregate principal amount of each such Lender’s Term A-3 Loans and Revolving Credit Commitments on the 100% Financial Covenant Lender Amendment Effective Date; provided, that the consent fee payable pursuant to this Section 4(c) shall be without duplication for any consent fee paid with respect to any Lender’s Term A-3 Loans and Revolving Credit Commitments outstanding on the Ninth Amendment Effective Date pursuant to Section 3(e).
SECTION 5. Representations and Warranties. Each Amendment Loan Party hereby represents and warrants on the Ninth Amendment Effective Date that:
(a) the representations and warranties of the Borrowers contained in Article V of the Amended Credit Agreement and the representations and warranties of each Loan Party contained in each other Loan Document shall be true and correct on and as of the Ninth Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Existing Credit Agreement;
(b) this Amendment has been duly executed and delivered by each Amendment Loan Party and this Amendment, the Amended Credit Agreement and each other Loan Document constitute legal, valid and binding obligations of such Amendment Loan Party, enforceable against such Amendment Loan Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(c) the Guaranties do, and shall continue to, guarantee the Obligations (or Foreign Obligations, as applicable);
(d) the Collateral Documents and all of the Collateral described therein do, and shall continue to, secure the payment of all of the Obligations (or Foreign Obligations, as applicable); and
3



(e) the execution, delivery and performance by each Amendment Loan Party of this Amendment and the performance by each Amendment Loan Party of the Amended Credit Agreement have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Amendment Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Amendment Loan Party is a party or affecting such Amendment Loan Party or the properties of such Amendment Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Amendment Loan Party or its property is subject; or (c) violate any Law in any manner that is materially adverse to the Company and its Subsidiaries, except, in each case referred to (x) in clause (b)(i), or (y) to the extent relating to any order, injunction, writ or decree of any Governmental Authority not specifically relating to such Person or its property, in clause (b)(ii), to the extent that the same could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
SECTION 6. Effects on Loan Documents.
(a) On and after the Ninth Amendment Effective Date, each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and each reference in the Existing Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement.
(b) Except as specifically amended herein, all Loan Documents (including the Guaranties and all Liens granted thereunder in respect of the Obligations) shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Each Amendment Loan Party reaffirms its Guaranties and any prior grant and the validity of any Liens granted by it pursuant to the Collateral Documents, with all such Liens continuing to secure the applicable Obligations in full force and effect after giving effect to this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. This Amendment and the Amended Credit Agreement shall not constitute a novation of the Existing Credit Agreement or the other Loan Documents.
(d) The Company and the other parties hereto acknowledge and agree that, on and after the Ninth Amendment Effective Date, this Amendment shall constitute a Loan Document for all purposes of the Amended Credit Agreement.
SECTION 7. GOVERNING LAW.  THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 8. Miscellaneous.
4



(a) This Amendment shall be binding upon and inure to the benefit of the Loan Parties and their respective successors and permitted assigns, and upon the Administrative Agent and the Lenders and their respective successors and permitted assigns.
(b) Each Lender party hereto agrees that its consent to this Amendment is irrevocable and to the extent any Lender party hereto assigns any of its Revolving Credit Commitments, Term A-3 Loans or Term B-3 Loans on or after the date hereof, such consent shall be binding on any such assignees.
(c) In accordance with Section 10.20 of the Existing Credit Agreement, each Lender party hereto agrees to the terms of the CAM Agreement and further agrees to be bound by the terms thereof as if originally a party thereto.
(d) To the extent permitted by applicable Law, any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
(e) This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
[Remainder of page intentionally left blank.]

5



IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment as of the date first above written.
WEX INC.
By:  /s/ Roberto Simon 
Name: Roberto Simon
Title: Chief Financial Officer
DESIGNATED BORROWER:

WRIGHT EXPRESS INTERNATIONAL HOLDINGS LIMITED
By:  /s/ Roberto Simon Rabanal 
        Name: Roberto Simon Rabanal
        Title: Director
SPECIFIED DESIGNATED BORROWER:

Executed in accordance with section 127 of the Corporations Act 2001 (Cth) by

WEX CARD HOLDINGS AUSTRALIA PTY LTD
(ACN 123 181 635)

By:  /s/ Roberto Simon Rabanal \
        Name: Roberto Simon Rabanal
        Title: Director

By: /s/ Hilary Ann Rapkin 
        Name: Hilary Ann Rapkin
        Title: Director

[Signature Page to Ninth Amendment to Credit Agreement (WEX)]




Each of the undersigned (i) acknowledges and agrees to the foregoing Ninth Amendment, (ii) reaffirms any Guaranties executed by it and reaffirms that such Guaranties do, and shall continue to, guarantee the Obligations, and (iii) reaffirms any prior grant and the validity of any Liens granted by it pursuant to the Collateral Documents, with all such Liens and Guaranties continuing in full force and effect after giving effect to the Ninth Amendment.
SUBSIDIARY GUARANTORS:
FLEETONE HOLDINGS, LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal
Title: Treasurer
TRANSPLATINUM SERVICE, LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal
Title: Treasurer
FLEETONE, L.L.C.
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Treasurer
WRIGHT EXPRESS HOLDINGS 2, LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Manager
WRIGHT EXPRESS HOLDINGS 3, LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Manager
WEX HEALTH, INC.
By: /s/ Lynda Godkin  Name: Lynda Godkin Title: Secretary
ELECTRONIC FUNDS SOURCE LLC
[Signature Page to Ninth Amendment to Credit Agreement (WEX)]



By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Treasurer
EFS PAYMENTS LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Treasurer
OTR TOPCO LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Treasurer
OTR HOLDINGS LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Treasurer
TRUCKERS B2B, LLC
By: /s/ Roberto Simon Rabanal  
Name: Roberto Simon Rabanal 
Title: Treasurer
[Signature Page to Ninth Amendment to Credit Agreement (WEX)]



OTR BLOCKER LLC
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Treasurer
TCH CANADA INC.
By: /s/ Roberto Simon Rabanal  Name: Roberto Simon Rabanal Title: Treasurer
WRIGHT EXPRESS FUELING SOLUTIONS, INC.
By: /s/ Hilary A. Rapkin  Name: Hilary A. Rapkin Title: Secretary
WEX PAYMENTS INC.
By: /s/ Jay Dearborn  
Name: Jay Dearborn 
Title: Director
PO HOLDING LLC
By: /s/ Roberto Simon Rabanal 
        Name: Roberto Simon Rabanal
        Title: Treasurer

DISCOVERY BENEFITS, LLC
By: PO Holding LLC, as Managing Member
By: /s/ Roberto Simon Rabanal  
Name: Roberto Simon Rabanal 
Title: Treasurer
WEX FLEET US LLC
By: WEX Inc., as Sole Member
By: /s/ Roberto Simon 
Name: Roberto Simon 
Title: Chief Financial Officer
[Signature Page to Ninth Amendment to Credit Agreement (WEX)]



BANK OF AMERICA, N.A., as Administrative Agent
By:
/s/ Angela Larkin
Name: Angela Larkin
Title: Vice President
Title: Vice President

        

[Signature Page to Ninth Amendment to Credit Agreement (WEX)]



LENDER SIGNATURE PAGES ON FILE WITH ADMINISTRATIVE AGENT.






EXHIBIT A
AMENDED CREDIT AGREEMENT
[Attached]







CREDIT AGREEMENT1
Dated as of July 1, 2016
among
WEX INC.
and
CERTAIN SUBSIDIARIES,
as Borrowers,

BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,

and

The Other Lenders Party Hereto
BANK OF AMERICA, N.A.,
SUNTRUST ROBINSON HUMPHREY, INC.,
MUFG UNION BANK, N.A.,
and
CITIZENS BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners

BANK OF MONTREAL,
as Documentation Agent

and

BANK OF AMERICA, N.A.,
MUFG UNION BANK, N.A.,
SUNTRUST ROBINSON HUMPHREY, INC.,
and CITIZENS BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners with respect to the First Amendment, the Third Amendment and the Fourth Amendment

1 This marked version is marked against the Credit Agreement, dated as of July 1, 2016, the First Amendment, dated as of July 3, 2017, the Second Amendment, dated as of October 30, 2017, the Third Amendment, dated as of January 17, 2018, the Fourth Amendment, dated as of August 24, 2018, the Fifth Amendment, dated as of January 18, 2019, the Consent and Amendment, dated as of February 27, 2019, the Sixth Amendment, dated as of May 17, 2019, andas amended through the Seventh Amendment, dated as of November 19, 2019.2019, and shows changes made pursuant to the Ninth Amendment, dated as of June 26, 2020.






BANK OF MONTREAL,
as Documentation Agent with respect to the First Amendment, the Third Amendment and the Fourth Amendment

and

BANK OF AMERICA, N.A.,
MUFG UNION BANK, N.A.,
SUNTRUST ROBINSON HUMPHREY, INC.,
CITIZENS BANK, N.A.,
and
WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners with respect to the Fifth Amendment

BANK OF MONTREAL
and
SANTANDER BANK, N.A.,
as Documentation Agent with respect to the Fifth Amendment

BANK OF AMERICA, N.A.,
CITIZENS BANK, N.A.,
MUFG BANK, LTD.,
WELLS FARGO SECURITIES, LLC,
SUNTRUST ROBINSON HUMPHREY, INC.,
SANTANDER BANK, N.A.,
BMO CAPITAL MARKETS CORP.,
KEYBANC CAPITAL MARKETS INC.,
REGIONS CAPITAL MARKETS
and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners with respect to the Sixth Amendment





Execution Version
EXHIBIT A
Published CUSIP Number: 96208UAG6
This is a Syndicated Facility Agreement




TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 6065
1.03 Accounting Terms 6065
1.04 Rounding 6166
1.05 Exchange Rates; Currency Equivalents 6166
1.06 Additional Alternative Currencies 6166
1.07 Change of Currency 6267
1.08 Times of Day 6368
1.09 Letter of Credit Amounts 6368
1.10 Limited Condition Transaction 6368
1.11 Interest Rates 6469
1.12 Basket Calculations 6469
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans 6470
2.02 Borrowings, Conversions and Continuations of Loans 6671
2.03 Letters of Credit 6874
2.04 Swing Line Loans 7682
2.05 Prepayments 7985
2.06 Termination or Reduction of Commitments 8389
2.07 Repayment of Loans 8490
2.08 Interest 8491
2.09 Fees 8592
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate 8693
2.11 Evidence of Debt 8693
2.12 Payments Generally; Administrative Agent’s Clawback 8794
2.13 Sharing of Payments by Lenders 8996
2.14 Designated Borrowers 8996
2.15 Defaulting Lenders 9198
2.16 Designated Lenders 9299
2.17 Incremental Commitments 92100
2.18 Refinancing Facilities 95103
2.19 Amend and Extend Transactions 96104
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes 98105
3.02 Illegality 102110
3.03 Inability to Determine Rates 103111
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans 105113
3.05 Compensation for Losses 106114
3.06 Mitigation Obligations; Replacement of Lenders 107115
3.07 Survival 108116
3.08 Obligations Under Article III 108116
-1-


Page
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension 108116
4.02 Conditions to All Credit Extensions 111119
4.03 Conditions to Credit Extension to Specified Designated Borrower 112120
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power 112121
5.02 Authorization; No Contravention 112121
5.03 Governmental Authorization; Other Consents 113121
5.04 Binding Effect 113121
5.05 Financial Statements; No Material Adverse Effect 113122
5.06 Litigation 114122
5.07 No Default 114123
5.08 Ownership of Property; Liens 114123
5.09 Environmental Compliance 114123
5.10 Insurance 114123
5.11 Taxes 114123
5.12 ERISA Compliance 115123
5.13 Subsidiaries; Equity Interests 116124
5.14 Margin Regulations; Investment Company Act 116125
5.15 Disclosure 116125
5.16 Compliance with Laws 116125
5.17 Taxpayer Identification Number; Other Identifying Information 117125
5.18 Intellectual Property; Licenses, Etc. 117126
5.19 Representations as to Foreign Loan Parties and the Specified Designated Borrower 117126
5.20 Solvency 118127
5.21 OFAC 118127
5.22 Anti-Corruption Laws 118127
5.23 PATRIOT Act 119127
5.24 Use of Proceeds 119128
5.25 Collateral Documents 119128
5.26 EEA Financial Institution 119128
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements 119128
6.02 Certificates; Other Information 121130
6.03 Notices 122132
6.04 Payment of Obligations 123132
6.05 Preservation of Existence, Etc. 123132
6.06 Maintenance of Properties 123132
6.07 Maintenance of Insurance 123133
6.08 Compliance with Laws 124133
6.09 Books and Records 124133
6.10 Inspection Rights 124133
6.11 Use of Proceeds 124133
6.12 Approvals and Authorizations 125134
-2-


Page
6.13 Additional Guarantors and Collateral; Redesignation of Immaterial Subsidiaries; Designation of Stock Pledge Subsidiaries 125134
6.14 Compliance with Regulatory Requirements 128138
6.15 Further Assurances 129138
6.16 Post-Closing Covenant 129138
6.17 People with Significant Control Regime (UK) 129138
ARTICLE VII
NEGATIVE COVENANTS
7.01 Liens 129139
7.02 Investments 131141
7.03 Indebtedness 134144
7.04 Fundamental Changes 137147
7.05 Dispositions 137148
7.06 Restricted Payments 138149
7.07 Change in Nature of Business; Bank Regulated Subsidiaries 139150
7.08 Transactions with Affiliates 140150
7.09 Burdensome Agreements 140150
7.10 Use of Proceeds 141151
7.11 Financial Covenants 141152
7.12 Sale and Leasebacks 141153
7.13 Accounting Changes 142153
7.14 Tax Receivable Agreement; Prepayments 142153
7.15 Amendments 142153
7.16 Permitted Securitization Transactions 142153
7.17 Changes in Locations, Name, etc. 142154
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default 143154
8.02 Remedies Upon Event of Default 145157
8.03 Application of Funds 147158
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority 148159
9.02 Rights as a Lender 148160
9.03 Exculpatory Provisions 148160
9.04 Reliance by Administrative Agent 149161
9.05 Delegation of Duties 150162
9.06 Resignation of Administrative Agent 150162
9.07 Non-Reliance on the Administrative Agent, the Joint Lead Arrangers and the Other Lenders 151163
9.08 No Other Duties, Etc. 151164
9.09 Administrative Agent May File Proofs of Claim 151164
9.10 Collateral and Guaranty Matters 152165
9.11 Specified Cash Management Agreements and Specified Hedge Agreements 153166
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc. 154166
10.02 Notices; Effectiveness; Electronic Communication 156169
-3-


Page
10.03 No Waiver; Cumulative Remedies; Enforcement 158171
10.04 Expenses; Indemnity; Damage Waiver 158171
10.05 Payments Set Aside 160173
10.06 Successors and Assigns 160173
10.07 Treatment of Certain Information; Confidentiality 166179
10.08 Right of Setoff 167180
10.09 Interest Rate Limitation 167181
10.10 Counterparts; Integration; Effectiveness 168181
10.11 Survival of Representations and Warranties 168181
10.12 Severability 168182
10.13 Replacement of Lenders 168182
10.14 Governing Law; Jurisdiction; Etc. 169183
10.15 Waiver of Jury Trial 170184
10.16 No Advisory or Fiduciary Responsibility 171184
10.17 Electronic Execution of Assignments and Certain Other Documents 171185
10.18 USA PATRIOT Act 171185
10.19 Judgment Currency 172185
10.20 CAM Agreement 172186
10.21 Certain Representations and Confirmations 172186
10.22 [Reserved] 173186
10.23 Parallel Debt 173186
10.24 Additional Appointment 174188
10.25 Appointment of Company 174188
10.26 Acknowledgement and Consent to Bail-In of EEAAffected Financial 
Institutions 174188
10.27 ERISA 175189
10.28 Acknowledgement Regarding Any Supported QFCs 176190


SCHEDULES
1.01A  Agreed Credit Support Principles
1.01B  Existing Letters of Credit
2.01  Commitments and Applicable Percentages
4.01(a)(i) Initial Foreign Subsidiary Guarantors
4.01(a)(iv) Mortgaged Property
4.01(a)(x) Local Counsel
5.13  Subsidiaries; Other Equity Investments; Equity Interests in the Company
5.17 Identification Numbers for Designated Borrowers that are Foreign Subsidiaries
6.16 Post-Closing Actions
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.09 Burdensome Agreements
10.02 Administrative Agent’s Office; Certain Addresses for Notices
-4-



EXHIBITS
Form of
Loan Notice
B Swing Line Loan Notice
C-1 Term Note
C-2 Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F Company Guaranty
G Domestic Subsidiary Guaranty
H Foreign Subsidiary Guaranty
I U.S. Security Agreement
J Perfection Certificate
K Designated Borrower Request and Assumption Agreement
L Designated Borrower Notice
M-1 Form of U.S. Tax Compliance Certificate (Foreign Lenders that are Not 
Partnerships)
M-2 Form of U.S. Tax Compliance Certificate (Foreign Participants that are Not 
Partnerships)
M-3 Form of U.S. Tax Compliance Certificate (Foreign Participants that are 
Partnerships)
M-4 Form of U.S. Tax Compliance Certificate (Foreign Lenders that are Partnerships)
N Solvency Certificate
O Notice of Loan Prepayment

-5-



CREDIT AGREEMENT
This CREDIT AGREEMENT (“Agreement”) is entered into as of July 1, 2016 among WEX INC., a Delaware corporation (the “Company”), the Designated Borrowers (as defined herein and, together with the Company, collectively the “Borrowers” and, each a “Borrower”), the Specified Designated Borrower (as defined herein), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer and BANK OF AMERICA, N.A., (“BANA”), SUNTRUST ROBINSON HUMPHREY, INC. (“STRH”), MUFG UNION BANK, N.A. (“MUFG”) and CITIZENS BANK, N.A. (“Citizens”), as joint lead arrangers and joint bookrunners (collectively, the “Joint Lead Arrangers”) and BANK OF MONTREAL, as documentation agent (the “Documentation Agent”).
RECITALS:
WHEREAS, the Company intends to acquire (the “EFS Acquisition”), directly or indirectly, Electronic Funds Source LLC (“EFS”) through the acquisition of membership interests in a blocker entity and holding company of EFS pursuant to that certain Unit Purchase Agreement dated October 18, 2015 (as amended, supplemented, or modified in accordance with the terms hereof, the “Acquisition Agreement”).
WHEREAS, the Company has requested that concurrently with the consummation of the EFS Acquisition, the Lenders extend credit in the form of (i) the Term A-1 Loans (as defined herein) on the Closing Date in an initial aggregate principal amount of $455,000,000, (ii) the Term B-1 Loans (as defined herein) on the Closing Date in an initial aggregate principal amount of $1,200,000,000 and (iii) the Revolving Credit Facility (as defined herein) in an initial aggregate principal amount of $570,000,000.
WHEREAS, the proceeds of (i) the Term Loans (as defined herein), (ii) amounts drawn under the Revolving Credit Facility on the Closing Date, (iii) the Equity Issuance (as defined herein) and (iv) cash on the balance sheet of the Company will be used by the Company to finance the EFS Acquisition and the Refinancing (as defined herein) and to pay fees and expenses incurred in connection the foregoing.
WHEREAS, the Lenders have indicated their willingness to lend and the L/C Issuer (as defined herein) has indicated its willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
2023 Senior Notes” means the Company’s 4.750% Senior Notes due 2023, issued under the Indenture, dated as of January 30, 2013, among the Company, The Bank of New York Mellon Trust Company, N.A., as Trustee, and the Guarantors party thereto.




Acquired Entity or Business” means any Person, property, business or asset acquired by the Company or any Subsidiary, including pursuant to the Transactions or pursuant to a transaction consummated prior to or after the Closing Date, and not subsequently so disposed of.
Acquisition” means (a) an investment (through the acquisition of Equity Interests or otherwise) by the Company or any Subsidiary in any other Person pursuant to which such Person shall become a Subsidiary or shall be merged with or into the Company or any Subsidiary, or (b) the acquisition (by purchase, merger, consolidation or otherwise) by the Company or any Subsidiary of the assets of any Person which constitute all or substantially all of the assets of such Person or any division, business unit, product line or line of business of such Person.
Acquisition Agreement” has the meaning specified in the recitals hereto.
Acquisition Agreement Representations” means the representations made by or with respect to EFS and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Company has the right to terminate the Company’s obligations under the Acquisition Agreement, or to decline to consummate the EFS Acquisition pursuant to the Acquisition Agreement, as a result of a breach of such representations in the Acquisition Agreement.
Additional Credit Extension Amendment” means an amendment to this Agreement (which may, at the option of the Administrative Agent and the Company, be in the form of an amendment and restatement of this Agreement) providing for any (i) Incremental Facilities pursuant to Section 2.17, (ii) Credit Agreement Refinancing Indebtedness pursuant to Section 2.18 and/or (iii) Extended Revolving Credit Commitments or Extended Term Loans pursuant to Section 2.19, which shall be consistent with the applicable provisions of this Agreement and otherwise reasonably satisfactory to the Administrative Agent. Each Additional Credit Extension Amendment shall be executed by the L/C Issuer and/or the Swing Line Lender (to the extent Section 10.01 would require the consent of the L/C Issuer and/or the Swing Line Lender, respectively, for the amendments effected in such Additional Credit Extension Amendment), the Administrative Agent, the Loan Parties and the other parties specified in Section 2.17, 2.18 or 2.19, as applicable, of this Agreement (but not any other Lender not specified in Section 2.17, 2.18 or 2.19, as applicable, of this Agreement), but shall not effect any amendments that would require the consent of each affected Lender or all Lenders pursuant to the first proviso in the first paragraph of Section 10.01. Any Additional Credit Extension Amendment may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions in Section 4.01 of this Agreement and certificates confirming satisfaction of conditions consistent with Section 4.02.
Additional Term A-3 Commitment” means, with respect to the Additional Term A-3 Lender, its commitment to make a Term A-3 Loan on the Fourth Amendment Effective Date in an amount equal to $2,907,667.68.
Additional Term A-3 Lender” means the Person identified as such on the signature page to the Fourth Amendment.
Additional Term B-2 Commitment” means, with respect to the Additional Term Lender, its commitment to make a Term B-2 Loan on the First Amendment Effective Date in an amount equal to $78,193,138.71.
Additional Term B-3 Commitment” means, with respect to the Additional Term B-3 Lender, its commitment to make a Term B-3 Loan on the Sixth Amendment Effective Date in an amount equal to $265,073,336.23.
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Additional Term B-3 Lender” means the Person identified as such on the signature page to the Sixth Amendment.
Additional Term Lender” means the Person identified as such on the signature page to the First Amendment.
Administrative Agent” means Bank of America (or any of its designated branch offices or affiliates) in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders.
Administrative Questionnaire” means an Administrative Questionnaire in a form of supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agreed Credit Support Principles” means the principles set forth on Schedule 1.01A.
Agreement” has the meaning specified in the introductory paragraph hereto.
A.L.T.A.” has the meaning specified in Section 6.13(c)(ii).
Alternative Currency” means each of Euro, Sterling, Australian Dollars, Canadian Dollars, and each additional currency (other than Dollars) that is approved in accordance with Section 1.06; provided that each such additional currency is an Eligible Currency.
Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, 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 such Alternative Currency with Dollars.
Alternative Currency Sublimit” means an amount equal to the lesser of the Revolving Credit Facility and $500,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Revolving Credit Facility.
Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions.
Applicable Percentage” means (a) in respect of the Term A-1 Facility, with respect to any Term A-1 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A-1 Facility
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represented by (i) on or prior to the Closing Date, such Term A-1 Lender’s Term A-1 Commitment at such time and (ii) thereafter, the principal amount of such Term A-1 Lender’s Term A-1 Loans at such time, (b) in respect of the Term A-2 Facility, with respect to any Term A-2 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A-2 Facility represented by (i) on or prior to the First Amendment Effective Date, such Term A-2 Lender’s Term A-2 Commitment at such time and (ii) thereafter, the principal amount of such Term A-2 Lender’s Term A-2 Loans at such time, (c) in respect of the Term A-3 Facility, with respect to any Term A-3 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term A-3 Facility represented by (i) on or prior to the Fourth Amendment Effective Date, such Term A-3 Lender’s Term A-3 Commitment at such time and (ii) thereafter, the principal amount of such Term A-3 Lender’s Term A-3 Loans at such time, (d) in respect of the Term B-1 Facility, with respect to any Term B-1 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B-1 Facility represented by (i) on or prior to the Closing Date, such Term B-1 Lender’s Term B-1 Commitment at such time and (ii) thereafter, the principal amount of such Term B-1 Lender’s Term B-1 Loans at such time, (e) in respect of the Term B-2 Facility, with respect to any Term B-2 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B-2 Facility represented by (i) on or prior to the First Amendment Effective Date, such Term B-2 Lender’s Term B-2 Commitment at such time and (ii) thereafter, the principal amount of such Term B-2 Lender’s Term B-2 Loans at such time, (f) in respect of the Term B-3 Facility, with respect to any Term B-3 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B-3 Facility represented by (i) on or prior to the Sixth Amendment Effective Date, such Term B-3 Lender’s Term B-3 Commitment at such time and (ii) thereafter, the principal amount of such Term B-3 Lender’s Term B-3 Loans at such time, (g) in respect of any other Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of such Term Facility represented by the principal amount of such Term Lender’s Term Loans under such Term Facility at such time and (h) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.17. If the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
Applicable Rate” means, with respect to any Base Rate Loan or Eurocurrency Rate Loan, or with respect to Letter of Credit Fees and Commitment Fees payable hereunder:
(a)  with respect to the Revolving Credit Facility, (i) from the Fourth Amendment Effective Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for the fiscal quarter ending September 30, 2018, (x) 1.00% per annum, with respect to Base Rate Loans, (y) 2.00% per annum, with respect to Eurocurrency Rate Loans and Letter of Credit Fees and (z) 0.40% per annum, with respect to Commitment Fees, and (ii) thereafter, the following percentages per annum set forth below under the caption “Base Rate Loans,” “Eurocurrency Rate Loans (Letters of Credit)” or “Commitment Fee,” as the case may be, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):
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Applicable Rate
Pricing LevelConsolidated Leverage RatioBase Rate LoansEurocurrency Rate Loans(Letters of Credit)Commitment Fee
1< 3.00 to 1.000.75%1.75%0.30%
2≥ 3.00 to 1.00 and < 4.00 to 1.001.00%2.00%0.40%
3
≥ 4.00 to 1.00 and < 5.50 to 1.00
1.25%2.25%0.50%
4≥ 5.50 to 1.002.00%3.00%0.50%
(b) with respect to the Term A-3 Facility, (i) from the Fourth Amendment Effective Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for the fiscal quarter ending September 30, 2018, (x) 1.00% per annum, with respect to Base Rate Loans and (y) 2.00% per annum, with respect to Eurocurrency Rate Loans, and (ii) thereafter, the following percentages per annum set forth below under the caption “Base Rate Loans,” or “Eurocurrency Rate Loans,” as the case may be, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):
Applicable Rate
Pricing LevelConsolidated Leverage RatioBase Rate LoansEurocurrency Rate Loans
1< 3.00 to 1.000.75%1.75%
2≥ 3.00 to 1.00 and < 4.00 to 1.001.00%2.00%
3
≥ 4.00 to 1.00 and < 5.50 to 1.00
1.25%2.25%
4≥ 5.50 to 1.002.00%3.00%
(c) with respect to the Term B-3 Facility, (x) 1.25% per annum, with respect to Base Rate Loans and (y) 2.25% per annum, with respect to Eurocurrency Rate Loans;
(d) with respect to any Term Loans or Revolving Credit Commitments established or extended pursuant to Section 2.17, 2.18 or 2.19, as specified in the Additional Credit Extension Amendment related thereto.
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 34 shall apply in respect of the Revolving Credit Facility and Term A-3 Facility, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered.
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).
Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility at such time.
Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by
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the Administrative Agent or the L/C Issuer, 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 specified in Section 2.14.
Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or holds a Loan thereunder at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form (including electronic documentation generated by Market Clear or other electronic platform) approved by the Administrative Agent.
Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease and (c) in respect of any Securitization Transaction or Permitted Factoring Transaction, the outstanding principal amount of such financing owed to Persons other than the Company and its Subsidiaries and, in the case of any Securitization Transaction, other than to Permitted Securitization Entities.
Australian Dollar” means lawful money of the Commonwealth of Australia.
Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date in respect of the Revolving Credit Facility, (b) the date of termination of the Revolving Credit Facility pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.
Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time
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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 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 of America” means Bank of America, N.A. and its successors.
Bank Regulated Subsidiary” means (i) any Regulated Bank or (ii) any Subsidiary of a Regulated Bank all of the common stock of which is owned by such Regulated Bank.
Bank Regulated Subsidiary Event” means (A) any regulatory or enforcement action, agreement, commitment or order, whether formal, informal or otherwise taken by the (i) FDIC or other applicable Federal regulatory authority whether under Sections 8(a), (b), (c), (d) or (w), or Sections 38, 38A or 39 of the Federal Deposit Insurance Act (the “FDI Act”) or the FDIC’s regulations, including Parts 325 or 364, or otherwise, (ii) the Bureau of Consumer Financial Protection, or (iii) by the Utah Commissioner of Financial Institutions (the “Utah Commissioner”) under Sections 7-1-307, 7-1-313, 7-1-320, 7-1-322 or 7-2-1 et seq. of the Utah Code, or otherwise, or by any other applicable state regulatory authority if any such action will or is reasonably likely to (a) limit or restrict the offering, renewal, use or sources of brokered, internet or bulletin board deposits, or any nondeposit funding of any Material Bank Regulated Subsidiary, (b) limit or restrict the offering or issuance of credit cards or the extension of credit or other transactions thereunder by a Material Bank Regulated Subsidiary, (c) require higher minimum capital ratios for any Material Bank Regulated Subsidiary above those required for banks and industrial loan companies generally to remain well capitalized for all regulatory purposes or (d) materially affect any Material Bank Regulated Subsidiary’s conduct of its business or (B) any breach or violation of any of any law, rule, order, agreement or commitment to the FDIC, the Utah Commissioner or other applicable regulatory authority, including any breach or violation of any of the items described in clause (A) of this paragraph, which has or is reasonably likely to have any of the effects listed in clauses (a) through (d) above; and (C) any such event is continuing for three (3) Business Days.
Base Rate means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurocurrency Rate plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
Base Rate Revolving Credit Loan” means a Revolving Credit Loan that is a Base Rate Loan.
Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest based on the Base Rate. Base Rate Loans are available only to the Company and to Designated Borrowers that are Domestic Loan Parties, and only for Loans denominated in Dollars.
Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
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Benefit Plan” means 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”.
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.
Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph hereto.
Borrower Materials” has the meaning specified in Section 6.02.
Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing, as the context may require.
Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Euro are conducted by and between banks in the London interbank eurodollar market and a TARGET Day;
(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
CAM Agreement” means that certain Collection Allocation Mechanism Agreement, dated as of the date hereof, by and among the Administrative Agent and each Lender, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, it being understood and agreed that
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no Loan Party shall be a party to such agreement or have any rights or obligations thereunder, nor shall the consent of any Loan Party be required with respect to any aspect thereof.
Canadian Dollar” and “CAD” means lawful money of Canada.
Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations).
Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Company and its Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the Company and its Subsidiaries.
Cash Collateralize” has the meaning specified in Section 2.03(g)(iv).
Cash Equivalents” means, as to any Person, (a) securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof having maturities of not more than one year from the date of acquisition by such Person; (b) time deposits, certificates of deposit and bankers’ acceptances of any Lender or any commercial bank, or which is the principal banking subsidiary of a bank holding company, in each case, organized under the laws of the United States, any state thereof or the District of Columbia having, capital and surplus aggregating in excess of $500 million with maturities of not more than one year from the date of acquisition by such Person; (c) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with any bank meeting the qualifications specified in clause (b) above, which repurchase obligations are secured by a valid perfected security interest in the underlying securities; (d) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s and in each case maturing not more than one year after the date of acquisition by such Person; (e) direct obligations issued by any state of the United States or any political subdivision thereof having one of the two highest rating categories obtainable from either S&P or Moody’s with maturities of not more than one year from the date of acquisition thereof; (f) demand deposit accounts maintained in the ordinary course of business; (g) investments in money market funds (i) substantially all of whose assets are comprised of securities of the types described in clauses (a) through (f) above, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $500,000,000.
Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement (or, with respect to Cash Management Agreements outstanding on the Closing Date, on the Closing Date), is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement, but only for so long as such Person is a Lender or an Affiliate of a Lender.
Casualty Event” means any event that gives rise to the receipt by the Company or any Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
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CDOR” has the meaning specified in the definition of “Eurocurrency Rate.”
Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) 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, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 30% or more of the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
(b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (in each case, such approval either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director); or
(c) any “change of control” or similar event, however characterized, shall occur under any document governing any Indebtedness of the Company or any Subsidiary having a principal amount equal to or greater than the Threshold Amount if, as a consequence of such change of control or similar event, the holders of such Indebtedness have the right whether or not exercised, to cause the Company or any Subsidiary to redeem, prepay, repurchase or make any other payment in respect of such Indebtedness.
Citizens” has the meaning specified in the introductory paragraph hereto.
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Class” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Term A-1 Loans, Term A-2 Loans, Term A-3 Loans, Term B-1 Loans, Term B-2 Loans, Term B-3 Loans, Incremental Term Loans, Refinancing Term Loans, Extended Term Loans, Revolving Credit Loans, Incremental Revolving Credit Loans, Refinancing Revolving Credit Loans or Extended Revolving Credit Loans, (b) any Commitment, refers to whether such Commitment is a Term A-1 Commitment, Term A-2 Commitment, Term A-3 Commitment, Term B-1 Commitment, Term B-2 Commitment, Term B-3 Commitment, Incremental Term Loan Commitment, Revolving Credit Commitment, Incremental Revolving Credit Commitment, Refinancing Revolving Credit Commitment or Extended Revolving Credit Commitment, (c) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. Incremental Term Loans, Refinancing Term Loans, Extended Term Loans, Incremental Revolving Credit Loans, Refinancing Revolving Credit Loans, Extended Revolving Credit Loans, Incremental Term Loan Commitments, Incremental Revolving Credit Commitments, Refinancing Revolving Credit Commitments or Extended Revolving Credit Commitments that have different terms and conditions shall be construed to be in different Classes. For the avoidance of doubt, all Term A-3 Loans shall be considered part of a single Class and all Term B-3 Loans shall be considered part of a single Class.
Closing Date” means July 1, 2016.
Code” means the Internal Revenue Code of 1986.
Collateral” means all of the “Collateral” and “Mortgaged Property” or other similar term referred to in the Collateral Documents and all of the other property that is subject to Liens (or with respect to which Liens are purported to be granted pursuant to the Collateral Documents) in favor of the Administrative Agent for the benefit of the Secured Parties (subject to all exclusions and limitations therein).
Collateral Documents” means, collectively, (i) the U.S. Security Agreement, the U.S. IP Security Agreements, the Foreign Subsidiary Pledge Documents (including the WES Stock Pledge Documents) and each supplement thereto, (ii) each of the Mortgages, collateral assignments, supplements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.13 and Section 6.15 and (iii) each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
Commitment” means a Term A-1 Commitment, a Term B-1 Commitment, a Term A-2 Commitment, a Term A-3 Commitment, a Term B-2 Commitment, a Term B-3 Commitment, a Revolving Credit Commitment or any other commitment to extend credit established pursuant to an Additional Credit Extension Amendment, as the context may require.
Commitment Fee” shall have the meaning assigned to such term in Section 2.09(a).
Commitment Letter” means the amended and restated commitment letter, dated December 13, 2015, among the Company, Bank of America, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Bank, STRH, MUFG and Citizens.
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Company” has the meaning specified in the introductory paragraph hereto.
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Company Guaranty” means the Company Guaranty made by the Company in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F.
Compliance Certificate” means a certificate substantially in the form of Exhibit D.
Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated EBITDA” means, for any period, Consolidated Net Income after eliminating extraordinary gains and losses, and unusual items, (a) plus, without duplication (and to the extent deducted in calculating such Consolidated Net Income), (i) income tax expense, (ii) depreciation and amortization expense, (iii) Consolidated Interest Charges, (iv) other non-cash charges and (v) non-recurring charges or expenses incurred as transaction costs in connection with Permitted Acquisitions, and (b) minus, without duplication, any non-recurring cash income or gain to the extent included in the computation of Consolidated Net Income for such period; provided that for purposes of determining “Consolidated EBITDA” any unrealized non-cash gains (and losses) arising in connection with any Swap Contracts shall be subtracted (or added) to the extent such unrealized non-cash gains (or losses) were included in the computation of Consolidated Net Income; provided that, if any Subsidiary is not a Wholly-Owned Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise reduced in accordance with GAAP) by an amount equal to (A) the amount of the Consolidated Net Income attributable to such Subsidiary multiplied by (B) the percentage of common Equity Interests of such Subsidiary not owned on the last day of such period by the Company or any of its Wholly-Owned Subsidiaries.
In addition to, and without limitation of, the foregoing, for purposes of this definition, “Consolidated EBITDA” shall be calculated on each date of determination on a Pro Forma Basis, including to give effect to any Consolidated EBITDA attributable to any Material Acquisition or Material Disposition during the applicable period, as if such Material Acquisition or Material Disposition occurred on the first day of the applicable period. As used in this definition, “Material Acquisition” means any Acquisition that involves the payment of consideration by the Company and its Subsidiaries in excess of $10,000,000; and “Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Company and its Subsidiaries in excess of $10,000,000.
For the purposes of determining the Consolidated Interest Coverage Ratio or Consolidated Leverage Ratio for any fiscal quarter, Consolidated EBITDA shall be deemed to equal (a) $132.4 million for the fiscal quarter ended June 30, 2015, (b) $135.1 million for the fiscal quarter ended September 30, 2015, (c) $106.4 million for the fiscal quarter ended December 31, 2015, and (d) $104.8 million for the fiscal quarter ended March 31, 2016 (it being understood that such amounts are subject to adjustments (other than related to the Transactions), as and to the extent otherwise contemplated in this Agreement, in connection with any calculation on a Pro Forma Basis).
Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and its Subsidiaries on a consolidated basis, but without duplication, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder in respect of borrowed money) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, but only to the extent includable as a liability on the
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consolidated balance sheet of the Company and its Subsidiaries as of such date, (d) all obligations in respect of the deferred purchase price of property or services to the extent constituting Indebtedness (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of capital leases, Synthetic Lease Obligations, Securitization Transactions and Permitted Factoring Transactions, (f) all obligations of such Person in respect of Disqualified Stock, (g) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (f) above of Persons other than the Company or any Subsidiary, and (h) all Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Company or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Company or such Subsidiary. For the purposes of this definition, Consolidated Funded Indebtedness shall not include Operating Indebtedness.
Consolidated Interest Charges” means, for any period, the sum, for the Company and its consolidated Subsidiaries (determined in accordance with GAAP), of all interest in respect of Consolidated Funded Indebtedness (including, without limitation, the interest component of any payments in respect of capital lease obligations, but excluding (a) commissions, discounts, yield and other fees and charges (and any interest expense) incurred in connection with any Permitted Securitization Transaction and (b) any capitalized financing costs) accrued during such period (whether or not actually paid during such period).
Consolidated Interest Coverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated EBITDA for such Test Period to (b) Consolidated Interest Charges for such Test Period; provided that for purposes of this definition Consolidated Interest Charges shall not include any Operating Interest Expense.
Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)(i) Consolidated Funded Indebtedness as of such date, less (ii) the amount (not to exceed $350,000,000(x) with respect to calculating the Consolidated Leverage Ratio for determining the Applicable Rate for Term A-3 Loans and Revolving Credit Loans, $350,000,000 in the aggregate, (y) with respect to calculating the Consolidated Leverage Ratio for purposes of Section 7.11(b), (I) prior to the consummation of the eNett/Optal Acquisition, $350,000,000 in the aggregate and (II) following the consummation of the eNett/Optal Acquisition, $400,000,000 in the aggregate and (z) with respect to calculating the Consolidated Leverage Ratio for all other purposes, $400,000,000 in the aggregate) of Consolidated Funded Indebtedness constituting Indebtedness under Permitted Securitization Transactions, and less the amount of Consolidated Funded Indebtedness constituting the non-recourse portion of any Permitted Factoring Transactions less (iii) the aggregate amount (up to (x) with respect to calculating the Consolidated Leverage Ratio for determining the Applicable Rate for Term A-3 Loans and Revolving Credit Loans, the aggregate amount up to (I) prior to the consummation of the eNett/Optal Acquisition, $250,000,000 and (II) following the consummation of the eNett/Optal Acquisition, $400,000,000; provided that, if the Company issues Permitted Unsecured Indebtedness, any Equity Interests (other than Disqualified Stock) or a combination thereof in an aggregate principal amount or, in the case of Equity Interests, with gross proceeds, of at least $300,000,000 following the Ninth Amendment Effective Date and prior to the Increased Cash Netting End Date, such amount shall be increased by the amount of net proceeds received by the Company from the issuance of such Permitted Unsecured Indebtedness and Equity Interests until the Increased Cash Netting End Date, (y) with respect to calculating the Consolidated Leverage Ratio for determining the Applicable Rate for Term A-3 Loans and Revolving Credit Loans and for purposes of Section 7.11(b) only, the aggregate amount up to $125,000,000 and (y(I) prior to the consummation of the eNett/Optal
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Acquisition, $250,000,000 and (II) following the consummation of the eNett/Optal Acquisition, $400,000,000; provided that, if the Company issues Permitted Unsecured Indebtedness, any Equity Interests (other than Disqualified Stock) or a combination thereof in an aggregate principal amount or, in the case of Equity Interests, with gross proceeds, of at least $300,000,000 following the Ninth Amendment Effective Date and prior to the Increased Cash Netting End Date, such amount shall be unlimited until the Increased Cash Netting End Date and (z) with respect to calculating the Consolidated Leverage Ratio for all other purposes, the aggregate amount up to the greatergreatest of $150,000,000250,000,000 and the amountamounts set forth in clauseclauses (x) and (y) above) of unrestricted cash and Cash Equivalents denominated in Dollars or other lawful currencies (provided that such other currencies are readily convertible to, and deliverable in, Dollars and as to which a Dollar Equivalent may be readily calculated) held by the Company and its Subsidiaries (other than the Bank Regulated Subsidiaries) as of such date to (b) Consolidated EBITDA for the Test Period most recently ended.
Consolidated Net Income” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the net income (loss) of the Company and its Subsidiaries for that period, determined on a consolidated basis in accordance with GAAP.
Consolidated Net Worth” means, as of any date of determination, all items which in conformity with GAAP would be included under shareholder’s equity on a consolidated balance sheet of the Company and its Subsidiaries at such date.
Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of (a)(i) Consolidated Funded Indebtedness that is secured by a Lien on any assets of the Company or any of its Subsidiaries as of such date, less (ii) the amount (not to exceed the greater of $350,000,000400,000,000 in the aggregate or suchthe highest amount deducted from Consolidated Leverage Ratio in clauseclauses (a)(ii)(x) or (a)(ii)(y) in the definition thereof with respect to Permitted Securitization Transactions) of Consolidated Funded Indebtedness constituting Indebtedness under Permitted Securitization Transactions, and less the amount of Consolidated Funded Indebtedness constituting the non-recourse portion of any Permitted Factoring Transactions less (iii) the aggregate amount (up to $150.0 million250,000,000 or such greater amount which is deducted from Consolidated Leverage Ratio in clauseclauses (a)(iii)(x) or (a)(iii)(y) in the definition thereof) of unrestricted cash and Cash Equivalents denominated in Dollars or other lawful currencies (provided that such other currencies are readily convertible to, and deliverable in, Dollars and as to which a Dollar Equivalent may be readily calculated) held by the Company and its Subsidiaries (other than the Bank Regulated Subsidiaries) as of such date to (b) Consolidated EBITDA for the Test Period most recently ended.
Consolidated Total Assets” means, as of any date of determination, the total assets of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
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Converted Term A-1 Loan” means each Term A-1 Loan held by a Term A-1 Lender on the First Amendment Effective Date immediately prior to the funding of the corresponding Term A-2 Loan on such date.
Converted Term A-2 Loan” means each Term A-2 Loan held by a Converting Consenting Term A-2 Lender on the Fourth Amendment Effective Date immediately prior to the funding of the corresponding Term A-3 Loan on such date.
Converted Term B-1 Loan” means each Term B-1 Loan held by a Converting Consenting Term B-1 Lender on the First Amendment Effective Date immediately prior to the funding of the corresponding Term B-2 Loan on such date.
Converted Term B-2 Loan” means each Term B-2 Loan held by a Converting Consenting Term B-2 Lender on the Sixth Amendment Effective Date immediately prior to the funding of the corresponding Term B-3 Loan on such date.
Converting Consenting Term A-2 Lender” means a Term A-2 Lender that has elected to be a “Converting Consenting Term A-2 Lender” on its signature page to the Fourth Amendment.
Converting Consenting Term B-1 Lender” means a Term B-1 Lender that has elected to be a “Converting Consenting Term B-1 Lender” on its signature page to the First Amendment.
Converting Consenting Term B-2 Lender” means a Term B-2 Lender that has elected to be a “Converting Consenting Term B-2 Lender” on its signature page to the Sixth Amendment.
Corresponding Debt” has the meaning specified in Section 10.23(b).
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).
Covered Party” has the meaning specified in Section 10.28.
Credit Agreement Refinancing Indebtedness” means Indebtedness issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans, or Revolving Credit Loans (or unused Revolving Credit Commitments), (“Refinanced Debt”); provided that such exchanging, extending, renewing, replacing or refinancing Indebtedness (a) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (plus any premium, original issue discount, accrued interest and fees and expenses incurred in connection with such exchange, extension, renewal, replacement or refinancing), (b) does not mature earlier than or have a Weighted Average Life to Maturity shorter than, the Refinanced Debt, (c) shall not be incurred or guaranteed by any entity that is not a Loan Party, (d) in the case of any secured Indebtedness (i) is not secured by any assets not securing the Obligations (other than cash collateral required to be provided due to a defaulting lender) and (ii) is subject to a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the Company, (e) shall not contain any mandatory redemption or prepayment provisions (other than amortization provisions and other than the mandatory prepayment provisions as set forth in Section 2.05 (solely with respect to any Indebtedness secured by the Collateral on a pari passu basis with the Facilities) or other customary asset sale and change of control offers or events of default)
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that could result in prepayments of such Indebtedness prior to the Maturity Date of the applicable Refinanced Debt and (f) has terms (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) that are not materially more favorable (when taken as a whole) to the lenders or investors providing such Indebtedness than the terms of the Refinanced Debt except for covenants or other provisions applicable only to periods after the Maturity Date or earlier repayment in full of the Term B-3 Loans; provided that such Indebtedness may contain additional or more restrictive financial covenants than the Refinanced Debt so long as such covenants are added for the benefit of the Lenders hereunder.
Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, dissolution, administration, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, winding up, reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise), or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Declined Proceeds” has the meaning specified in Section 2.05(b)(v).
Deductible Amount” has the meaning specified in Section 10.23(d).
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
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.
Defaulting Lender” means, subject to Section 2.15(b), any Lender that, as determined by the Administrative Agent, (a) has failed to (i) perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swing Line Loans, within two Business Days of the date required to be funded by it hereunder (unless such obligation is the subject of a good faith dispute) or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any Lender that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator,
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trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment, or (iv) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.
Designated Borrower” means (i) WEX International Holdings, (ii) certain Subsidiaries of the Company becoming party hereto pursuant to Section 2.14 and, (iii) only upon the satisfaction of the conditions set forth in Section 4.03, the Specified Designated Borrower.
Designated Borrower Notice” has the meaning specified in Section 2.14(a).
Designated Borrower Request and Assumption Agreement” has the meaning specified in Section 2.14(a).
Designated Borrower Requirements” has the meaning specified in Section 2.14(a).
Designated Borrower Sublimit” means an amount equal to the lesser of (x) the Revolving Credit Facility and (y) the greater of (i) $770,000,000820,000,000 and (ii) such other amount as agreed to by the Required Revolving Credit Lenders. The Designated Borrower Sublimit is part of, and not in addition to, the Revolving Credit Facility.
Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
Designated Lender” has the meaning set forth in Section 2.16.
Designated Obligations” means all Obligations of any Loan Party in respect of principal and interest on the Loans, and L/C Obligations.
Designated Regulatory Cash” means cash deposited from time to time into one or more segregated bank accounts of the Company and its Subsidiaries (identified to the Administrative Agent in writing) that is required to be retained in order to comply with applicable banking or finance law and regulations.
Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and including any disposition of property to a Divided LLC pursuant to an LLC Division.
Disqualified Stock” means any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Stock and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund obligation or otherwise, (b) is convertible into or exchangeable (either mandatorily or at the sole option of the holder thereof) for (i) Indebtedness or debt securities or (ii) any Equity Interests referred to in (a) above (other than solely for
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Equity Interests in such Person that do not constitute Disqualified Stock and cash in lieu of fractional shares of such Equity Interests), or (c) is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Stock and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by such Person or any of its Affiliates, in whole or in part, at the sole option of the holder thereof; in each case, on or prior to the date ninety-one (91) days after the latest Maturity Date hereunder, provided however that any Equity Interests that would not constitute Disqualified Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem or purchase such Equity Interests upon the occurrence of a change in control or an asset sale or similar event shall not constitute Disqualified Stock solely because it may be required to be repurchased by the issuer thereof (or any direct or indirect parent company thereof) or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person or if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the repayment in full of the Obligations.
Disqualifying Event” has the meaning specified in the definition of Eligible Currency.
Divided LLC” means any limited liability company which has been formed upon the consummation of an LLC Division.
Documentation Agent” has the meaning specified in the introductory paragraph hereto. On and after the Tranche A Fifth Amendment Effective Date, the Documentation Agents shall include the Fifth Amendment Documentation Agents. On and after the Sixth Amendment Effective Date, the Documentation Agents shall include the Sixth Amendment Documentation Agents.
Dollar” and “$” mean lawful money of the United States.
Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, 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 such Alternative Currency.
Domestic Loan Party” means the Company and each Domestic Subsidiary that is a Loan Party.
Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
Domestic Subsidiary Guaranty” means the Domestic Subsidiary Guaranty made by the Domestic Subsidiary Guarantors in favor of the Administrative Agent and the other parties benefitting thereunder, substantially in the form of Exhibit G.
Domestic Subsidiary Guarantors” means each Person (other than the Company) that is from time to time a party (but only for so long as they are a party) to the Domestic Subsidiary Guaranty.
Dutch Auction” means an auction with respect to Term Loans conducted pursuant to Section 10.06(i) to allow a Purchasing Borrower Party to prepay Term Loans at a discount to par value on a pro rata basis in accordance with the applicable Dutch Auction Procedures.
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Dutch Auction Procedures” means, with respect to a purchase of Term Loans in a Dutch Auction, Dutch auction procedures as reasonably agreed upon by the applicable Purchasing Borrower Party and the Administrative Agent.
EEA Financial Institution” means (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” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means 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.

EFS” has the meaning specified in the recitals hereto.
EFS Acquisition” has the meaning specified in the recitals hereto.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06 (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).
Eligible Currency” means any lawful currency other than Dollars that is readily available, freely transferable and convertible into Dollars in the international interbank market available to the Lenders in such market and as to which a Dollar Equivalent may be readily calculated. If, after the designation by the Lenders of any currency as an Alternative Currency, any change in currency controls or exchange regulations or any change in the national or international financial, political or economic conditions are imposed in the country in which such currency is issued, result in, in the reasonable opinion of the Administrative Agent (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer being readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent is no longer readily calculable with respect to such currency, or (c) providing such currency is impracticable for the Lenders (each of (a), (b) and (c) a “Disqualifying Event”), then the Administrative Agent shall promptly notify the Lenders and the Borrower, and such country’s currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist. Within five (5) Business Days after receipt of such notice from the Administrative Agent, the Borrowers shall repay all Loans in such currency to which the Disqualifying Event applies or convert such Loans into the Dollar Equivalent of Loans in Dollars, subject to the other terms contained herein.
EMU” means 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” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
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“eNett/Optal Acquisition” means the acquisition by the Company of eNett International (Jersey) Limited, a Jersey limited company (“Everest”), and Optal Limited, a private company limited by shares incorporated in England and Wales (“Olympus”), pursuant to the terms of the Share Purchase Agreement, dated as of January 24, 2020 (as may be amended, restated, amended and restated, waived, supplemented or otherwise modified from time to time in a manner that (i) is not materially adverse to the Administrative Agent or the Lenders or (ii) is otherwise permitted or consented to pursuant to the Summit Commitment Letter, the “eNett/Optal SPA”), by and among Everest, Olympus, Travelport Limited, a Bermuda exempted company, Toro Private Holdings I, Ltd., a private company limited by shares incorporated in England and Wales, the Everest Sellers (as defined therein), the Olympus Sellers (as defined therein) and the Company.
Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, or governmental restrictions, and all agreements issued, promulgated or entered into by or with any Governmental Authority, in each case relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, but excluding any debt securities convertible or exchangeable into such capital stock, whether outstanding on the Ninth Amendment Effective Date or issued thereafter.
Equity Issuance” means the issuance of equity interests in the Company as part of the consideration for the EFS Acquisition in accordance with the Acquisition Agreement
ERISA” means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company or any Borrower, as applicable, within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
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complete or partial withdrawal by a Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Borrower or any ERISA Affiliate.
“Escrowed Proceeds” means the proceeds from the offering of any debt securities or other Indebtedness paid into an escrow account with an independent escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the release of amounts on deposit in such escrow account upon satisfaction of certain conditions or the occurrence of certain events. The term “Escrowed Proceeds” shall include any interest earned on the amounts held in escrow.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Euro” and “EUR” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
Eurocurrency Rate” means:
(a) With respect to any Credit Extension:
(i) denominated in a LIBOR Quoted Currency, the rate per annum equal to (A) the London Interbank Offered Rate (“LIBOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or, (B) if such rate is not available at such time for any reason, a comparable or successor rate approved by the Administrative Agent;
(ii) denominated in Canadian dollars, the rate per annum equal to (A) the Canadian Dealer Offered Rate (“CDOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 10:00 a.m. (Toronto, Ontario time) on the Rate Determination Date with a term equivalent to such Interest Period or, (B) if such rate is not available at such time for any reason, a comparable or successor rate approved by the Administrative Agent;
(iii) denominated in Australian dollars, the rate per annum equal to (A) the average bid rate quoted on page “BBSY,” as displayed on Reuters at or about 10:30 a.m. (Sydney, Australia time) on the Rate Determination Date with a term equivalent to such
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Interest Period or, (B) if such rate is not available at such time for any reason, a comparable or successor rate approved by the Administrative Agent; and
(b) for any rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;
provided that (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further, that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (ii), (ii) other than with respect to the Revolving Credit Facility, if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement and (iii) solely with respect to the Revolving Credit Facility, if the Eurocurrency Rate shall be less than 0.75%, such rate shall be deemed to be 0.75% for purposes of this Agreement.
Eurocurrency Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest at a rate based on paragraph (a) of the definition of “Eurocurrency Rate.” Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency. All Loans denominated in an Alternative Currency or made to a Foreign Borrower must be Eurocurrency Rate Loans.
Event of Default” has the meaning specified in Section 8.01.
Excess Cash Flow” means, for any fiscal year of the Company, the excess, if any, of:
(a) the sum, without duplication, of:
(i) Consolidated Net Income for such fiscal year;
(ii) the amount of all non-cash charges (including depreciation and amortization expense) deducted in arriving at such Consolidated Net Income; and
(iii) the aggregate net amount of non-cash losses on the Disposition of property by the Company and its Subsidiaries during such fiscal year (other than Dispositions in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income minus
(b) the sum, without duplication, of:
(i) the amount of all non-cash credits included in arriving at such Consolidated Net Income;
(ii) the aggregate amount actually paid by the Company and its Subsidiaries in cash during such fiscal year on account of Capital Expenditures and permitted Investments (including Permitted Acquisitions), but excluding Investments made pursuant to Sections 7.02(a), (g) and (u);
(iii) (x) the aggregate amount of all principal payments of Indebtedness (including scheduled repayments of the Term Loans and the principal component of
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payments in respect of capital leases) and (y) all mandatory prepayments of Term Loans pursuant to Section 2.05(b)(i) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding all other repayments of Term Loans made during such period, in each case, other than in respect of any revolving credit facility except to the extent there is an equivalent permanent reduction in commitments thereunder, in each case, of the Company and its Subsidiaries made during such fiscal year;
(iv) the aggregate net amount of non-cash gain on the Disposition of property by the Company and its Subsidiaries during such fiscal year (other than Dispositions in the ordinary course of business);
(v) Restricted Payments (other than those made pursuant to Section 7.06(e)) made by the Company or any of its Subsidiaries in cash to Persons other than the Company and its Subsidiaries;
(vi) customary fees, expenses or charges paid in cash related to any permitted Investments (including Permitted Acquisitions), the issuance, payment, amendment or refinancing of Indebtedness permitted hereunder, the issuance of Equity Interests permitted hereunder and Dispositions permitted hereunder;
(vii) any premium, make-whole or penalty payments paid in cash during such period in connection with the prepayment, redemption, purchase, defeasance or other satisfaction prior to scheduled maturity of Indebtedness permitted to be prepaid, redeemed, purchased, defeased or satisfied hereunder;
(viii) cash payments by the Company and its consolidated Subsidiaries during such fiscal year in respect of long-term liabilities of the Company and its consolidated Subsidiaries other than Indebtedness, to the extent such payments are not expensed during such period and are not deducted in calculating Consolidated Net Income;
(ix)  at the option of the Company, and without duplication of amounts deducted from Excess Cash Flow in prior periods, (1) the aggregate consideration required to be paid in cash by the Company or any of its Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, other Investments (other than Investments pursuant to Sections 7.02(a), (d) and (u)) or Capital Expenditures (including Capitalized Software Expenditures or other purchases of intellectual property) to be consummated or made during the subsequent fiscal year and (2) to the extent set forth in a certificate of a Responsible Officer delivered to the Administrative Agent at or before the time the Compliance Certificate for the period ending simultaneously with such Test Period is required to be delivered, the aggregate amount of cash that is reasonably expected to be paid in respect of planned cash expenditures by the Company or any of its Subsidiaries (the “Planned Expenditures”) relating to Capital Expenditures (including Capitalized Software Expenditures or other purchases of intellectual property) to be consummated or made during the subsequent fiscal year; provided, that to the extent the aggregate amount of Internally Generated Cash actually utilized to finance such Permitted Acquisitions, Investments or Capital Expenditures during such fiscal year is less than the Contract
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Consideration or Planned Expenditures, as applicable, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such fiscal year; and
(x) the amount of taxes (including penalties and interest) paid in cash and/or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period.
provided that the amounts referenced in clauses (ii), (iii), (v) and (viii) of this paragraph (b) shall only be included in this paragraph (b) and have the effect of reducing Excess Cash Flow to the extent (x) in the case of clauses (ii) and (v), such amounts were funded with Internally Generated Cash and (y) in the case of clauses (iii) and (viii), such amounts were not funded with the proceeds of Indebtedness (other than Indebtedness incurred under the Revolving Credit Facility) or Equity Interests.
Excess Cash Flow Percentage” means, as of the date of determination, (a) if the Consolidated Leverage Ratio as of the last day of the applicable fiscal year of the Company is greater than or equal to 3.75:1.00, 50%, (b) if the Consolidated Leverage Ratio as of the last day of the applicable fiscal year of the Company is less than 3.75:1.00 but greater than or equal to 3.25:1.00, 25% and (c) if the Consolidated Leverage Ratio as of the last day of the applicable fiscal year of the Company is less than 3.25:1.00, 0%.
Excluded Domestic Guaranty Subsidiary” means (a) any Bank Regulated Subsidiary and any of their respective Subsidiaries, (b) any Immaterial Subsidiary, (c) each Permitted Securitization Entity and (d) any Domestic Subsidiary to the extent that the execution and delivery of the Subsidiary Guaranty would not be legally permissible or would require any governmental or regulatory consent, approval, license or authorization (unless such consent, approval, license or authorization has been obtained), or would otherwise result in a burden that would, in the reasonable judgment of the Administrative Agent, exceed the benefit that would be conferred upon the Lenders thereby; provided that no Subsidiary may be an Excluded Domestic Guaranty Subsidiary if such Subsidiary Guarantees or is otherwise obligated to pay any Indebtedness incurred or outstanding in reliance on Section 7.03(k) or (o).
Excluded Foreign Guaranty Subsidiary” means (a) any Bank Regulated Subsidiary and any of their respective Subsidiaries, (b) any Immaterial Subsidiary, (c) each Permitted Securitization Entity, and (d) any Foreign Subsidiary to the extent, in the case of this subsection (d) only, that the execution and delivery of the Subsidiary Guaranty (i) would not be legally permissible or would require any governmental or regulatory consent, approval, license or authorization (unless such consent, approval, license or authorization has been obtained), (ii) would result in adverse tax or accounting effects, (iii) should, in the reasonable judgment of the Administrative Agent, not be required by reason of the Agreed Credit Support Principles or (iv) would otherwise result in a burden that would, in the reasonable judgment of the Administrative Agent, exceed the benefit that would be conferred upon the Lenders thereby; provided that no Subsidiary may be an Excluded Foreign Guaranty Subsidiary if such Subsidiary Guarantees or is otherwise obligated to pay any Indebtedness incurred or outstanding in reliance on Section 7.03(k) or (o).
Excluded Pledge Subsidiary” means each Foreign Subsidiary that (a) is not directly owned by a Domestic Loan Party, (b) is an Immaterial Subsidiary, (c) is a Permitted Securitization Entity, (d) is a Bank Regulated Subsidiary or a Subsidiary thereof, or (e) is a Person to the extent, in the case of this clause (e) only, that the pledge of up to 65% of each class of the Equity Interests of such Person (i) would not be legally permissible or would require any governmental or regulatory consent, approval, license or authorization (unless such consent, approval, license or authorization has been obtained), (ii) would result
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in adverse tax or accounting effects, (iii) would result in a burden that would, in the reasonable judgment of the Administrative Agent, exceed the benefit that would be conferred by the pledge of the Equity Interests of such Person or (iv) should, in the reasonable judgment of the Administrative Agent, not be required by reason of the Agreed Credit Support Principles.
Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant by such Loan Party of a Lien 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 thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell, support or other agreement” for the benefit of such Loan Party and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or grant by such Loan Party of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.
Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its 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 Company under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or (c), 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 Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA. Notwithstanding anything to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding tax (other than Other Connection Taxes) imposed at any time on payments made by or on behalf of a Foreign Loan Party to any Lender hereunder or under any other Loan Document, except for any such taxes imposed as a result of a Lender’s failure or inability to comply with Section 3.01(e)(i), (iii) or (iv). In such a case, any portion of withholding tax imposed solely due to a Lender’s failure or inability to comply with Section 3.01(e)(i), (iii) or (iv) shall be treated as an “Excluded Tax.”
Existing Credit Agreement” means that certain Second Amended and Restated Credit Agreement, dated as of August 22, 2014 (as amended, supplemented or otherwise modified prior to the Closing Date), among the Borrower, certain subsidiaries of the Borrower, as borrowers, Bank of America, N.A., as administrative agent and collateral agent, and the other parties thereto.
Existing Letters of Credit” means those certain letters of credit set forth on Schedule 1.01B.
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Existing Mustang Credit Agreements” means (i) that certain First Lien Credit Agreement, dated as of May 29, 2014, as amended, by and among WP Mustang Holdings LLC, WP Mustang Topco LLC, the several banks and other financial institutions and lenders from time to time party thereto and Goldman Sachs Bank USA, in its capacity as first lien administrative agent for such lenders and (ii) that certain Second Lien Credit Agreement, dated as of May 29, 2014, as amended, by and among WP Mustang Holdings LLC, WP Mustang Topco LLC, the several banks and other financial institutions and lenders from time to time party thereto and Credit Suisse AG, in its capacity as second lien administrative agent for such lenders.
Extended Revolving Credit Commitment” means any Revolving Credit Commitments the maturity of which shall have been extended pursuant to Section 2.19.
Extended Revolving Credit Loans” means any Revolving Credit Loans made pursuant to the Extended Revolving Credit Commitments.
Extended Term Loans” means any Term Loans the maturity of which shall have been extended pursuant to Section 2.19.
Extension” has the meaning set forth in Section 2.19(a).
Extension Offer” has the meaning set forth in Section 2.19(a).
Facility” means the Term A-1 Facility, the Term A-2 Facility, the Term A-3 Facility, the Term B-1 Facility, the Term B-2 Facility, the Term B-3 Facility, the Revolving Credit Facility or any credit facility created pursuant to an Additional Credit Extension Amendment, as the context may require.
Factorable Receivables” means accounts receivable of the Company and its Subsidiaries that (a) are produced in the ordinary course of business and (b) are not contingent upon any further performance by the Borrower or any of its Subsidiaries.
FATCA” means 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 administrative interpretations thereof, any similar provision of law applicable under an intergovernmental agreement entered into in respect thereof and any agreements entered into pursuant to such intergovernmental agreement or Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor version described above), and any intergovernmental agreements implementing the foregoing.
FDIC” means the Federal Deposit Insurance Corporation.
Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent and (c) if the Federal Funds Rate would otherwise be less than 0% per annum, the Federal Funds Rate will be deemed to be 0% per annum for purposes of this Agreement.
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Federal Reserve means the Board of Governors of the Federal Reserve System of the United States, together with its constituent banks and agencies.
Fee Letter” means the amended and restated fee letter, dated December 13, 2015, among the Company, Bank of America, MLPFS, SunTrust Bank, STRH, MUFG and Citizens, together with each other fee letter entered into with any Person as lead arranger or administrative agent for the Facilities or any loans thereunder.
Fifth Amendment” means that certain Fifth Amendment to the Credit Agreement, dated as of January 18, 2019, by and among the Borrowers, the Administrative Agent and the Lenders party thereto.
Fifth Amendment Documentation Agents” means Bank of Montreal and Santander Bank, N.A.
Fifth Amendment Joint Lead Arrangers” means BANA, STRH, MUFG, Citizens and Wells Fargo Securities, LLC.
Financial Covenant” has the meaning specified in Section 8.01(b).
First Amendment” means that certain First Amendment to the Credit Agreement, dated as of July 3, 2017, by and among the Borrowers, the Domestic Subsidiary Guarantors, the Administrative Agent and the Lenders party thereto.
First Amendment Consenting Term B-1 Lenders” means, collectively, the Converting Consenting Term B-1 Lenders and the Non-Converting Consenting Term B-1 Lenders.
First Amendment Effective Date” has the meaning assigned to such term in the First Amendment.
Flood Insurance Laws” means, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
Foreign Borrower” means any Borrower that is organized under the laws of a jurisdiction other than the Unites States, a state thereof or the District of Columbia.
Foreign Lender” means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the law of a jurisdiction other than that in which such Borrower is resident for tax purposes (including such a Lender when acting in the capacity of the L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
Foreign Loan Party” means each Foreign Subsidiary that is a Loan Party.
Foreign Obligation Provider” has the meaning set forth in the definition of “Foreign Subsidiary Secured Obligations.”
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Foreign Obligations” means all of the Obligations of each Foreign Loan Party, including without limitation the Foreign Subsidiary Secured Obligations.
Foreign Pension Plan” means a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which the Company or any Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions.
Foreign Plan” means each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by the Company or any of its Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.
Foreign Prepayment Event” has the meaning specified in Section 2.05(b)(vi).
Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.
Foreign Subsidiary Guarantors” means each Person that is from time to time a party (but only for so long as they are a party) to a Foreign Subsidiary Guaranty. For the avoidance of doubt, Foreign Subsidiary Guarantors shall not guarantee any Obligations of the Company or any Domestic Subsidiary.
Foreign Subsidiary Guaranty” means a guarantee of the Foreign Obligations made by a Foreign Subsidiary in favor of the Administrative Agent and the other parties benefitting thereunder, substantially in the form of Exhibit H, or otherwise reasonably acceptable to the Administrative Agent. Any such guarantee may be a Reduced Guaranty, and any such guarantee made by WES or any of its direct or indirect Subsidiaries may, at the election of the Company, be a Limited Guaranty.
Foreign Subsidiary Pledge Documents” means the U.S. Security Agreement, the WES Stock Pledge Documents and all other documents, instruments and agreements executed by or on behalf of any Loan Party to effect a pledge of Equity Interests in any Foreign Subsidiary to the Administrative Agent.
Foreign Subsidiary Secured Obligations” means all unpaid principal of, accrued and unpaid interest and fees and reimbursement obligations, and all expenses, reimbursements, indemnities and other obligations under or with respect to, any loans, letters of credit, acceptances, guarantees, overdraft facilities, other credit extensions or accommodations or similar obligations owing by any Foreign Subsidiary pursuant to the Loan Documents to any Lender or any office, branch or Affiliate of any Lender (each a “Foreign Obligation Provider”) and including interest and fees that accrue after the commencement by or against any Foreign Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Fourth Amendment” means that certain Fourth Amendment to the Credit Agreement, dated as of August 24, 2018, by and among the Borrowers, the Administrative Agent and the Lenders party thereto.
Fourth Amendment Consenting Term A-2 Lenders” means, collectively, the Converting Consenting Term A-2 Lenders and the Non-Converting Consenting Term A-2 Lenders.
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Fourth Amendment Effective Date” has the meaning assigned to such term in the Fourth Amendment.
FRB” means the Board of Governors of the Federal Reserve System of the United States.
Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
Fund” means 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 activities.
GAAP” means generally accepted accounting principles in the United States set forth in the Accounting Standards Codification issued by Financial Accounting Standards Board, consistently applied and as in effect from time to time.
Governmental Authority” means the government of the United States or any other nation, or of 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 (including any supra-national bodies such as the European Union or the European Central Bank).
Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
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Guaranties” means the Company Guaranty, the Domestic Subsidiary Guaranty and each Foreign Subsidiary Guaranty.
Hazardous Materials” means 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.