Second Amendment to Credit Agreement, dated as of December 24, 2013, among EVO Payments International, LLC, as borrower, the guarantors identified therein, the lenders identified therein and SunTrust Bank, as Administrative Agent
Exhibit 10.8
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of December 24, 2013 (this Amendment), is entered into among EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company (the Borrower), the Guarantors party hereto, the Lenders party hereto, and SUNTRUST BANK, as Administrative Agent for the Lenders (in such capacity, the Administrative Agent). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent are parties to that certain Credit Agreement, dated as of May 30, 2012, as amended by that certain First Amendment to Credit Agreement and Security Agreement dated as of June 7, 2013 (as the same may be further amended, modified, extended, supplemented or restated from time to time, the Credit Agreement); and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement, as provided herein.
NOW, THEREFORE, in consideration of the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Amendments.
(a) In Section 1.1 of the Credit Agreement, the definition of Consolidated EBITDA is amended as follows:
(i) clause (x) of subsection (v) is amended in its entirety as follows:
(x) nonrecurring expenses incurred in connection with consummated acquisitions of, or joint ventures with respect to, Restricted Subsidiaries (whether such acquisitions or joint ventures are with respect to assets or Capital Stock) permitted pursuant to the terms hereof in an aggregate amount not to exceed (1) with respect to transaction fees and transfer taxes incurred in connection with the acquisition of 66% of the share capital of Centrum Elektronicznych Uslug Platniczych eService sp. z.o.o., $6,250,000 in any twelve month period and (2) with respect to transaction fees incurred in connection with any other consummated transaction, $2,000,000 in any twelve month period;
(ii) subsection (xiii) is amended by inserting and at the end of such subsection;
(iii) subsection (xiv) is amended by replacing the and at the end of such subsection with , ; and
(iv) subsection (xv) is deleted in its entirety.
(b) Schedule II to the Credit Agreement is deleted in its entirety.
2. Effectiveness; Conditions Precedent. This Amendment shall be effective when all of the conditions set forth in this Section 2 shall have been satisfied (the Second Amendment Effective Date):
(a) The Administrative Agent shall have received a counterpart of this Amendment signed by or on behalf of the Borrower, the Guarantors, the Administrative Agent and each Lender.
(b) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that:
(i) All of the representations and warranties in the Loan Documents are true and correct in all material respects (except that any representation or warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) as of the Second Amendment Effective Date (other than representations and warranties which are as of a specific date, which shall be true and correct in all material respects or in all respects, as applicable, as of such date); and
(ii) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing or would result from any proposed Borrowings to be made on the Second Amendment Effective Date;
(c) The Administrative Agent shall have received payment of all fees due and payable by the Loan Parties on or prior to the Second Amendment Effective Date to or for the account of the Lenders, Administrative Agent or the Arranger.
3. Expenses. Subject to the limitations set forth in Section 9.3 of the Credit Agreement, the Loan Parties agree to reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of Moore & Van Allen PLLC.
4. Ratification of Credit Agreement. Each Loan Party acknowledges and consents to the terms set forth herein and agrees that this Amendment does not impair, reduce or limit any of its obligations under the Loan Documents, as amended hereby. This Amendment is a Loan Document.
5. Authority/Enforceability. Each Loan Party represents and warrants as follows:
(a) It has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Loan Party and constitutes its legal, valid and binding obligations, enforceable in accordance with its terms, subject to applicable Debtor Relief Laws and to general principles of equity.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by such Loan Party of this Amendment.
(d) The execution and delivery of this Amendment does not (i) contravene the terms of its Organization Documents (ii) violate any Law or (iii) contravene any contracts to which such Loan Party is bound.
6. Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants to the Lenders that after giving effect to this Amendment (a) the representations and warranties set forth in Article IV of the Credit Agreement are true and correct in all material respects (or, if such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects as written) as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (b) no event has occurred and is continuing which constitutes a Default.
7. Counterparts/Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts of this Amendment by telecopy or other secure electronic format (.pdf) shall be effective as an original.
8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
10. Headings. The headings of the sections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment.
11. Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
BORROWER: | EVO PAYMENTS INTERNATIONAL, LLC, a Delaware limited liability company | |||||
By: | /s/ Ray Sidhom | |||||
Name: | Ray Sidhom | |||||
Title: | Authorized Officer | |||||
GUARANTORS: | EVO MERCHANT SERVICES, LLC, a Delaware limited liability company | |||||
By: | /s/ Ray Sidhom | |||||
Name: | Ray Sidhom | |||||
Title: | Authorized Officer | |||||
ENCORE PAYMENT SYSTEMS, LLC, a Delaware limited liability company | ||||||
By: | /s/ Ray Sidhom | |||||
Name: | Ray Sidhom | |||||
Title: | Authorized Officer | |||||
VISION PAYMENT SOLUTIONS, LLC, a Delaware limited liability company | ||||||
By: | /s/ Ray Sidhom | |||||
Name: | Ray Sidhom | |||||
Title: | Authorized Officer | |||||
NATIONWIDE PAYMENT SOLUTIONS, LLC, a Delaware limited liability company | ||||||
By: | /s/ Ray Sidhom | |||||
Name: | Ray Sidhom | |||||
Title: | Authorized Officer |
[Signature Pages Continue]
COMMERCE PAYMENT GROUP, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
EVO DIRECT, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
PRODIGY PAYMENT SYSTEMS, LLC, Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
MOMENTUM PAYMENT SYSTEMS, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
MOCA PAYMENT SYSTEMS, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer | |
[Signature Pages Continue]
EVO POS TECHNOLOGIES, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
POWERPAY, LLC, a Maine limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
POWERPAY CAPITAL, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
EVO PAYMENT SYSTEMS, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
LEASESOURCE, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
EVO POWERPAY HOLDINGS, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
[Signature Pages Continue]
CVE EVO, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
E-ONLINEDATA, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
E-ONLINEDATA-POWERPAY, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
MEINC, LLC, a Delaware limited liability company |
By: | /s/ Ray Sidhom | |
Name: | Ray Sidhom | |
Title: | Authorized Officer |
[Signature Pages Continue]
ADMINISTRATIVE AGENT: | SUNTRUST BANK, as Administrative Agent, Issuing Bank and Swingline Lender | |||||
By: | /s/ David Bennett | |||||
Name: | David Bennett | |||||
Title: | Director | |||||
LENDERS: | SUNTRUST BANK, as a Lender | |||||
By: | /s/ David Bennett | |||||
Name: | David Bennett | |||||
Title: | Director | |||||
FIFTH THIRD BANK, as a Lender | ||||||
By: | /s/ Carrie Weisman | |||||
Name: | Carrie Weisman | |||||
Title: | AVP | |||||
PEOPLES UNITED BANK, as a Lender | ||||||
By: | /s/ Robert M. Carley | |||||
Name: | Robert M. Carley | |||||
Title: | SVP | |||||
SANTANDER BANK, N.A., as a Lender | ||||||
By: | /s/ Yulia Murphy | |||||
Name: | Yulia Murphy | |||||
Title: | Associate Vice President, Credit Officer | |||||
SYNOVUS BANK, as a Lender | ||||||
By: | /s/ William Buchy | |||||
Name: | William Buchy | |||||
Title: | Corporate Banker |
[Signature Pages Continue]
CERTUSBANK, N.A., as a Lender | ||
By: | /s/ Stacy B. Brandon | |
Name: | Stacy B. Brandon | |
Title: | Senior Vice President |
COMMUNITY & SOUTHERN BANK, as a Lender | ||
By: | /s/ Brian R. McLean | |
Name: | Brian R. McLean | |
Title: | SVP |
REGIONS BANK, as a Lender | ||
By: | /s/ Knight D. Kieffer | |
Name: | Knight D. Kieffer | |
Title: | Vice President |
BANK OF AMERICA, N.A., as a Lender | ||
By: | /s/ Dominic Malleo | |
Name: | Dominic Malleo | |
Title: | Director |
PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Susan J. Dimmick | |
Name: | Susan J. Dimmick | |
Title: | SVP |
Santander BANK, N.A., as a Lender | ||
By: | /s/ Yulia Murphy | |
Name: | Yulia Murphy | |
Title: | AVP, Credit Officer |
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Vanitha Kathrotia | |
Name: | Vanitha Kathrotia | |
Title: | Vice President |
AIB DEBT MANAGEMENT LIMITED, as a Lender | ||
By: | /s/ Donna Cleary | |
Name: | Donna Cleary | |
Title: | Vice President Investment Advisor to AIB Debt Management, Limited |
By: | /s/ Roisin OConnell | |
Name: | Roisin OConnell | |
Title: | Senior Vice President Investment Advisor to AIB Debt Management, Limited |