Fifth Amendment to the Transfer and Contribution Agreement, dated as of July 20, 2018, to the Transfer and Contribution Agreement, dated December 31, 2015 between First Data Corporation, First Data Receivables, LLC, First Data Resources, LLC, CardConnect, LLC, Concord Computing Corporation, First Data Government Solutions, Inc., First Data Government Solutions, LP, Star Networks, Inc., First Data Processing, Inc., First Data Hardware Services Inc., TeleCheck Services, Inc., Star Systems Assets, Inc., First Data Merchant Services, LLC, Ignite Payments, LLC, FDS Holdings, Inc., New Payment Services, Inc., CTS Holdings, LLC, Concord Payment Services, Inc., Gift Solutions LLC and PNC Bank, National Association

EX-10.2 3 d568520dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

EXECUTION VERSION

FIFTH AMENDMENT TO THE

TRANSFER AND CONTRIBUTION AGREEMENT

This FIFTH AMENDMENT TO THE TRANSFER AND CONTRIBUTION AGREEMENT (this “Amendment”), dated as of July 20, 2018, is entered into by and among the VARIOUS ENTITIES LISTED ON THE SIGNATURE PAGES HERETO AS AN ORIGINATOR (the “Originators”), REMITCO LLC (the “Released Originator”), FIRST DATA CORPORATION, as initial Servicer (“First Data”), and FIRST DATA RECEIVABLES, LLC, a Delaware limited liability company (the “Company”).

Capitalized terms used but not otherwise defined herein (including such terms used above) have the respective meanings assigned thereto in the Transfer and Contribution Agreement described below.

BACKGROUND

A.    The Originators, the Company and the Servicer have entered into a Transfer and Contribution Agreement, dated as of December 31, 2015 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Transfer and Contribution Agreement”).

B.    Concurrently herewith, the Company, First Data and PNC Bank, National Association (“PNC”), as Committed Lender, Group Agent and Administrative Agent, are entering into that certain Fifth Amendment to the Receivables Financing Agreement (the “RFA Amendment”), dated as of the date hereof.

C.    The parties hereto desire to amend the Transfer and Contribution Agreement as set forth herein.

NOW, THEREFORE, with the intention of being legally bound hereby, and in consideration of the mutual undertakings expressed herein, each party to this Amendment hereby agrees as follows:

SECTION 1.    Amendments to the Transfer and Contribution Agreement. The Transfer and Contribution Agreement is hereby amended as follows:

(a)    Schedule I of the Transfer and Contribution Agreement is hereby replaced in its entirety with the schedule attached hereto as Schedule I.

(b)    Schedule II of the Transfer and Contribution Agreement is hereby replaced in its entirety with the schedule attached hereto as Schedule II.

(c)    Schedule III of the Transfer and Contribution Agreement is hereby replaced in its entirety with the schedule attached hereto as Schedule III.

(a)    Release of Released Originator. The parties hereto hereby agree that upon the effectiveness of this Amendment, the Released Originator shall no longer be a party to the Transfer and Contribution Agreement or any other Transaction Document and shall no longer have any obligations or rights thereunder (other than such obligations which by their express terms survive termination of the Transfer and Contribution Agreement or such other Transaction Document).


SECTION 2.    Delegation and Assumption of Released Originator’s Obligations. Effective immediately prior to the removal of the Released Originator as a party to the Transfer and Contribution Agreement pursuant to Section 1 above, the Released Originator hereby delegates to the remaining Originators, and each remaining Originator hereby assumes, jointly and severally, all of the Released Originator’s duties, obligations and liabilities under the Transfer and Contribution Agreement and each of the other Transaction Documents.

SECTION 3.    Representations and Warranties of the Originators and Servicer. The Released Originator, the Originators and the Servicer hereby represent and warrant to each of the parties hereto as of the date hereof as follows:

(a)    Representations and Warranties. The representations and warranties made by it in the Transfer and Contribution Agreement and the Receivables Financing Agreement are true and correct as of the date hereof.

(b)    Enforceability. The execution and delivery by it of this Amendment, and the performance of its obligations under this Amendment, the Transfer and Contribution Agreement (as amended hereby) and the other Transaction Documents to which it is a party are within its organizational powers and have been duly authorized by all necessary action on its part, and this Amendment, the Transfer and Contribution Agreement (as amended hereby) and the other Transaction Documents to which it is a party are (assuming due authorization and execution by the other parties thereto) its valid and legally binding obligations, enforceable in accordance with its terms, except (x) the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws from time to time in effect relating to creditors’ rights, and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

(c)    No Event of Default. No Contribution Termination Event, Unmatured Contribution Termination Event, Event of Default or Unmatured Event of Default has occurred and is continuing, or would occur as a result of this Amendment or the transactions contemplated hereby.

SECTION 4.    Effect of Amendment; Ratification. All provisions of the Transfer and Contribution Agreement and the other Transaction Documents, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Transfer and Contribution Agreement (or in any other Transaction Document) to “this Transfer and Contribution Agreement”, “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Transfer and Contribution Agreement shall be deemed to be references to the Transfer and Contribution Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Transfer and Contribution Agreement other than as set forth herein. The Transfer and Contribution Agreement, as amended by this Amendment, is hereby ratified and confirmed in all respects.

 

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SECTION 5.    Effectiveness. This Amendment shall become effective as of the date hereof upon the Administrative Agent’s receipt of counterparts to this Amendment executed by each of the parties hereto.

SECTION 6.    Severability. Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 7.    Transaction Document. This Amendment shall be a Transaction Document for purposes of the Transfer and Contribution Agreement.

SECTION 8.    Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or e-mail transmission shall be effective as delivery of a manually executed counterpart hereof.

SECTION 9.    GOVERNING LAW AND JURISDICTION.

(a)    THIS AMENDMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).

(b)    EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

SECTION 10.    Further Assurances; UCC Termination. (a) Each of First Data, the Originators, and the Released Originator hereby agrees to do, at the Released Originator’s

 

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expense, all such things and execute all such documents and instruments, in each case, as the Administrative Agent or the Company may reasonably consider necessary or desirable to give full effect to the transaction contemplated by this Amendment and the documents, instruments and agreements executed in connection herewith and therewith. (b) The Administrative Agent hereby agrees to do, at the Released Originator’s expense, all such things and execute all such documents and instruments and authorize and file all such financing statements and financing statement amendments, in each case, as the Released Originator, First Data, or the Company may reasonably consider necessary or desirable to give full effect to the transaction contemplated by this Amendment and the documents, instruments and agreements executed in connection herewith and therewith.

SECTION 11.    Section Headings. The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Transfer and Contribution Agreement or any provision hereof or thereof.

[SIGNATURE PAGES FOLLOW]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their duly authorized officers as of the date first above written.

 

FIRST DATA RECEIVABLES, LLC,

as Company

By:   /s/ Joseph Furlong

Name: 

 

Joseph Furlong

Title:

 

Treasurer

 

FIRST DATA CORPORATION,

as Servicer

By:   /s/ Joseph Furlong

Name:

 

Joseph Furlong

Title:

 

Treasurer

 

 

  S-1  

Fifth Amendment to

Transfer and Contribution Agreement


FIRST DATA RESOURCES, LLC,
CARDCONNECT, LLC,
CONCORD COMPUTING CORPORATION,
STAR NETWORKS, INC.,
FIRST DATA PROCESSING, INC.,
FIRST DATA HARDWARE SERVICES INC.,
FIRST DATA GOVERNMENT SOLUTIONS, INC.,
FIRST DATA GOVERNMENT SOLUTIONS, LP,
STAR SYSTEMS ASSETS, INC.,
FIRST DATA MERCHANT SERVICES LLC,
IGNITE PAYMENTS, LLC,
FDS HOLDINGS, INC.,
NEW PAYMENT SERVICES, INC.,
CTS HOLDINGS, LLC,
CONCORD PAYMENT SERVICES, INC., and
GIFT SOLUTIONS LLC, each as an Originator
By:   /s/ Gretchen A. Herron

Name: 

 

Gretchen A. Herron

Title:

 

Assistant Secretary

 

TELECHECK SERVICES, INC.,

as an Originator

By:   /s/ Stanley J. Andersen

Name:

 

Stanley J. Andersen

Title:

 

Assistant Secretary

 

 

  S-2  

Fifth Amendment to

Transfer and Contribution Agreement


REMITCO LLC, as Released Originator
By:   /s/ Gretchen A. Herron
Name:    Gretchen A. Herron
Title:   Vice President

 

 

  S-3  

Fifth Amendment to

Transfer and Contribution Agreement


ACKNOWLEDGED AND AGREED TO BY:

 

PNC BANK, NATIONAL ASSOCIATION,

as Administrative Agent

By:   /s/ Michael Brown
Name:    Michael Brown
Title:   Senior Vice President

 

PNC BANK, NATIONAL ASSOCIATION,

as Group Agent for the PNC Group

By:   /s/ Michael Brown
Name:   Michael Brown
Title:   Senior Vice President

 

 

  S-4  

Fifth Amendment to

Transfer and Contribution Agreement


Schedule I

LIST AND LOCATION OF EACH ORIGINATOR

 

 

Originator    Location
First Data Resources, LLC    Delaware
TeleCheck Services, Inc.    Delaware
Star Networks, Inc.    Delaware
First Data Processing, Inc.    Delaware
First Data Hardware Services Inc.    California
First Data Government Solutions, Inc.    Delaware
First Data Government Solutions, LP    Delaware
Star Systems Assets, Inc.    Delaware
First Data Merchant Services LLC    Florida
Ignite Payments, LLC    California
FDS Holdings, Inc.    Delaware
New Payment Services, Inc.    Georgia
CTS Holdings, LLC    Colorado
Concord Payment Services, Inc.    Georgia
Gift Solutions LLC    Delaware
CardConnect, LLC    Delaware
Concord Computing Corporation    Delaware


Schedule II

LOCATION OF BOOKS AND RECORDS OF ORIGINATORS

 

 

Originator    Location of Books and Records
First Data Resources, LLC    6902 Pine Street, Omaha, NE 68106
TeleCheck Services, Inc.    5565 Glenridge Conn., Atlanta, GA 30342
Star Networks, Inc.    6902 Pine Street, Omaha, NE 68106
First Data Processing, Inc.    6902 Pine Street, Omaha, NE 68106
First Data Hardware Services Inc.    3975 NW 120th Avenue, Corral Springs, FL 33065
First Data Government Solutions, Inc.    5565 Glenridge Conn., Atlanta, GA 30342
First Data Government Solutions, LP    5565 Glenridge Conn., Atlanta, GA 30342
Star Systems Assets, Inc.    6902 Pine Street, Omaha, NE 68106
First Data Merchant Services LLC    3 Western Md Parkway, Hagerstown, MD 21740
Ignite Payments, LLC    3 Western Md Parkway, Hagerstown, MD 21740
FDS Holdings, Inc.    3 Western Md Parkway, Hagerstown, MD 21740
New Payment Services, Inc.    3 Western Md Parkway, Hagerstown, MD 21740
CTS Holdings, LLC    3 Western Md Parkway, Hagerstown, MD 21740
Concord Payment Services, Inc.    3 Western Md Parkway, Hagerstown, MD 21740
Gift Solutions LLC)    3975 NW 120th Avenue, Corral Springs, FL 33065
CardConnect, LLC    3 Western Md Parkway, Hagerstown, MD 21740
Concord Computing Corporation    3 Western Md Parkway, Hagerstown, MD 21740


Schedule III

TRADE NAMES

Corporate Names:

First Data Resources, LLC

TeleCheck Services, Inc.

Star Networks, Inc.

Star Processing, Inc.

First Data Processing, Inc.

Instant Cash Services, LLC

TASQ Technology, Inc.

First Data Hardware Services Inc.

First Data Government Solutions, Inc.

First Data Government Solutions, LP

Star Systems Assets, Inc.

First Data Merchant Services LLC

Unified Merchant Services

First Data Merchant Services Southeast, L.L.C.

Ignite Payments, LLC

First Data Merchant Services Northeast, LLC

FDS Holdings, Inc.

New Payment Services, Inc.

National Payment Systems Inc.

CTS Holdings, LLC

Concord Payment Services, Inc.

ValueLink, LLC

Gift Solutions LLC

CardConnect, LLC

Concord Computing Corporation

DBAs:

First Data Government Solutions, Inc.

 

Jurisdiction    DBA Name    Start Date
Florida    GovConnect, Inc.    9/29/2004

First Data Government Solutions, LP

 

Jurisdiction    DBA Name    Start Date

Colorado

  

Telepath

   8/21/2003

Connecticut

  

FDGS Limited Partnership

   3/7/2007


Kentucky

  

FDGS, LP

   1/28/2008

Maryland

  

First Data Government Solutions, Limited Partnership

   8/9/2004

Michigan

  

First Data Government Solutions, Limited Partnership

   8/13/2004

New Jersey

  

FD Government Solutions LP

   3/28/2006

Virginia

  

First Data Government Solutions of Virginia, LP

   11/24/2004

Star Networks, Inc.

 

Jurisdiction    DBA Name    Start Date

California

  

Star EFT, Inc.

   9/20/2004

Florida

  

Star Networks Systems, Inc.

   10/2/1998

TeleCheck Services, Inc.

 

Jurisdiction    DBA Name    Start Date

Vermont

  

Check Payment Services

   4/12/2000

CTS Holdings, LLC

 

Jurisdiction    DBA Name    Start Date

Colorado

  

Concord Payment Systems

   05/20/2005

First Data Merchant Services LLC*

 

Jurisdiction    DBA Name    Start Date

Illinois

  

Express Merchant Processing Solutions

   03/07/2017

Montana

  

Midwest Merchant Services

   05/20/2005

* Originator converted to an LLC on 12/31/15. Prior to such date, Originator was known as First Data Merchant Services Corporation. The following DBAs are registered under First Data Merchant Services Corporation:

 

Jurisdiction    DBA Name    Start Date

Florida

  

Community Merchant Services

   5/24/2005

Tennessee

  

First Virginia Merchant Services

   4/12/2000

Virginia

  

First Virginia Merchant Services

   5/10/2000

Maryland

  

First Virginia Merchant Services

   10/11/2002

Louisiana

  

Full Acquiring and Clearing Solutions

   9/7/2001

Iowa

  

Full Acquiring and Clearing Solutions

   7/18/2001

Indiana

  

Full Acquiring and Clearing Solutions

   9/7/2001

Illinois

  

Full Acquiring and Clearing Solutions

   7/9/2001

Idaho

  

Full Acquiring and Clearing Solutions

   8/24/2001

Hawaii

  

Full Acquiring and Clearing Solutions

   8/24/2001


Arkansas

  

Full Acquiring and Clearing Solutions

   8/24/2001

New Hampshire

  

Full Acquiring and Clearing Solutions

   8/29/2001

New Jersey

  

Full Acquiring and Clearing Solutions

   8/24/2001

North Dakota

  

Full Acquiring and Clearing Solutions

   7/9/2001

Oregon

  

Full Acquiring and Clearing Solutions

   8/24/2001

Pennsylvania

  

Full Acquiring and Clearing Solutions

   8/24/2001

Rhode Island

  

Full Acquiring and Clearing Solutions

   8/24/2001

Utah

  

Full Acquiring and Clearing Solutions

   7/10/2001

Nebraska

  

Full Acquiring and Clearing Solutions

   8/24/2001

Texas

  

Full Acquiring and Clearing Solutions

   9/10/2001

Maine

  

Full Acquiring and Clearing Solutions

   8/24/2001

Minnesota

  

Full Acquiring and Clearing Solutions

   8/24/2001

Missouri

  

Full Acquiring and Clearing Solutions

   8/24/2001

Montana

  

Full Acquiring and Clearing Solutions

   7/9/2001

Colorado

  

Full Acquiring and Clearing Solutions

   7/10/2001

Colorado

  

Midwest Merchant Services

   5/18/2005

Texas

  

Midwest Merchant Services

   5/20/2005

Idaho

  

Midwest Merchant Services

   5/23/2005

Iowa

  

Midwest Merchant Services

   5/20/2005

Montana

  

Midwest Merchant Services

   5/20/2005

Wyoming

  

Midwest Merchant Services

   5/24/2005

Oklahoma

  

Midwest Merchant Services

   5/23/2005

Minnesota

  

Midwest Merchant Services

   5/20/2005

North Dakota

  

Midwest Merchant Services

   5/23/2005

Missouri

  

Midwest Merchant Services

   5/23/2005

South Dakota

  

Midwest Merchant Services

   6/7/2005

Illinois

  

Midwest Merchant Services

   6/8/2005

Indiana

  

Midwest Merchant Services

   6/9/2005

Nebraska

  

Midwest Merchant Services

   5/23/2005

Utah

  

Midwest Merchant Services

   5/20/2005

Washington

  

Midwest Merchant Services

   6/10/2005

California

  

NaBanco

   6/29/1989

Florida

  

NaBanco

   7/29/1981

Florida

  

PaySpring Merchant Services

   6/27/2012

Colorado

  

Sam’s Club Merchant Credit Card Processing

   2/22/2005

Iowa

  

TCF Merchant Services

   5/2/2007

Colorado

  

TCF Merchant Services

   4/24/2007

Illinois

  

TCF Merchant Services

   5/2/2007

Minnesota

  

TCF Merchant Services

   5/22/2007

Indiana

  

TCF Merchant Services

   10/30/2007

Florida

  

West Coast Merchant Services

   10/26/2006


Ignite Payments, LLC

 

Jurisdiction    DBA Name    Start Date

California

  

First Data Independent Sales

   1/30/2013

California

  

First Data independent Sales

   2/5/2013

California

  

PayStart

   3/19/2013

National Payment Systems Inc.

 

Jurisdiction    DBA Name    Start Date

New York

  

Card Payment Systems

   11/21/1996

New York

  

Concord Payment Systems

   10/17/2001