Consent and Amendment Under Credit Agreement, dated as of February 27, 2019, by and among WEX Inc., the subsidiaries of WEX Inc. identified therein, the lenders party thereto and Bank of America, N.A., as administrative agent

EX-10.1 2 a51948408ex10_1.htm EXHIBIT 10.1

Exhibit 10.1

CONSENT AND AMENDMENT UNDER CREDIT AGREEMENT

THIS CONSENT AND AMENDMENT UNDER CREDIT AGREEMENT (this “Consent”) is entered into as of February 27, 2019, by and among BANK OF AMERICA, N.A., a national banking association, as administrative agent for each Lender (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent”), the Lenders party hereto, WEX INC., a Delaware corporation (“WEX”), WRIGHT EXPRESS INTERNATIONAL HOLDINGS LIMITED, as a Designated Borrower and WEX CARD HOLDINGS AUSTRALIA PTY LTD., as the Specified Designated Borrower.

WHEREAS, WEX, WRIGHT EXPRESS INTERNATIONAL HOLDINGS LIMITED, as a Designated Borrower, WEX CARD HOLDINGS AUSTRALIA PTY LTD., 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 and as it may be further amended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”);

WHEREAS, Unik S.A, a wholly owned subsidiary of WEX and successor in interest to FastCred Administracao e Servicos ltda., was designated as an immaterial subsidiary by WEX under the Credit Agreement in July 2016 (the “Immaterial Brazil Subsidiary”);

WHEREAS, the Borrowers have requested that the Administrative Agent and Lenders waive and modify certain conditions, obligations, and requirements under the Credit Agreement with respect to the Disclosed Matter (as described below); and

WHEREAS, the Administrative Agent and Required Lenders are willing to do so, in each case subject to the terms and conditions of this Consent.

NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:

Section 1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Credit Agreement.

Section 2A. Waiver and Consent. Effective as of the Consent Effective Date (as defined below), the undersigned Lenders, which constitute the Required Lenders, hereby agree that (a) no Default or Event of Default has resulted or will be deemed to result from the Disclosed Matter, (b) no breach of representations or warranties (including without limitation Section 5.05 of the Credit Agreement) has occurred or will be deemed to occur as a result of the Disclosed Matter and (c) all representations, conditions, warranties and covenants under the Loan Documents are expressly made subject to the Disclosed Matter in all respects, in each case, whether prior to, on or after the Consent Effective Date.

The foregoing is a limited waiver and consent and, except as expressly set forth herein, shall not constitute a modification, wavier or alteration of any of the terms, provisions, conditions or covenants of the Credit Agreement or any other Loan Document that are unrelated to the Disclosed Matter.

“Disclosed Matter” means any event, circumstance or condition arising out of or related to a potential write-down of balance sheet accounts which may or may not go through the current period consolidated income statement of WEX in an amount not to exceed $70 million for any period related to revenue recognized by the Immaterial Brazil Subsidiary.

Section 2B. Amendment to the Credit Agreement. The parties agree to amend the Section 5.05 of the Credit Agreement as follows:

(a) Section 5.05(a)(ii) shall be deleted in its entirety and replaced with the following: “fairly present in all material respects the financial condition of the Company and its Subsidiaries (or WP Mustang Holdings LLC and its Subsidiaries, as applicable) as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein,; and”

(b) Section 5.05(b)(ii) shall be deleted in its entirety and replaced with the following: “fairly present in all material respects the financial condition of the Company and its Subsidiaries (or WP Mustang Holdings LLC and its Subsidiaries, as applicable) as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end adjustments.”

(c) Section 6.09 shall be deleted in its entirety and replaced with the following: “Books and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in all material respects and in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Company or such Subsidiary, as the case may be.”

Section 3. Conditions to Effectiveness. The effectiveness of this Consent is subject to satisfaction of the following conditions precedent (the date of such satisfaction being the “Consent Effective Date”):

(a) (i) each of the Borrowers shall have executed and delivered counterparts of this Consent to the Administrative Agent, (ii) the Lenders constituting the Required Lenders shall have executed and delivered a counterpart of this Consent to the Administrative Agent and (iii) the Administrative Agent shall have executed a counterpart of this Consent;

(b) after giving effect to this Consent, the representations and warranties of the Borrowers contained in Article V of the 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 Consent 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 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 Credit Agreement;

(d) all fees and expenses required to be paid by WEX pursuant to Section 10.04 of the Credit Agreement relating to this Consent, shall have been paid or shall be paid substantially concurrently with the effectiveness of this Consent;

(e) the Administrative Agent shall have received a certificate of WEX signed by a Responsible Officer thereof:

(i) certifying that no Default or Event of Default exists immediately after giving effect to this Consent, and

(ii) certifying that the condition set forth in Section 3(b) hereof has been satisfied.

Section 4. Effects on Loan Documents.

(a) Except as specifically set forth 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 Borrower 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 in full force and effect after giving effect to this Consent.

(b) Except as set forth herein, the execution, delivery and effectiveness of this Consent 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 Consent shall not constitute a novation of the Credit Agreement or the other Loan Documents.

Section 5. Miscellaneous.

(a) Without limiting the applicability of any other provision of the Credit Agreement or any other Loan Document, the terms and provisions set forth in Sections 10.14 and 10.15 of the Credit Agreement are expressly incorporated herein by reference.

(b) This Consent may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Consent.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Consent 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
		Name: Roberto Simon
		Title: Director


	SPECIFIED DESIGNATED BORROWER:

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

	WEX CARD HOLDINGS AUSTRALIA PTY LTD


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

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

[Signature Page to Consent]

	BANK OF AMERICA, N.A.,
	as Administrative Agent


	By:	/s/ Angela Larkin
		Name: Angela Larkin
		Title: Vice President


	BANK OF AMERICA, N.A.,
	as Lender


	By:	/s/ Robert C. Megan
		Name: Robert C. Megan
		Title: Senior Vice President


	AIB DEBT MANAGEMENT, LIMITED,
	as a Lender


	By:	/s/ Joan Chen
		Name: Joan Chen
		Title: Vice President

	By:	/s/ Ellen Kenneally
		Name: Ellen Kenneally
		Title: Vice President


	APOLLO TRADING LLC,
	as a Lender


	By:	/s/ Margaret Sang
		Name: Margaret Sang
		Title: Authorized Signatory

[Signature Page to Consent]

	AZB FUNDING 5,
	as a Lender


	By:	/s/ Robert Gates
		Name: Robert Gates
		Title: Authorized Signatory


	BMO HARRIS FINANCING INC.,
	as Lender


	By:	/s/ Daniel A. Ryan
		Name: Daniel A. Ryan
		Title: Vice President


	CITI LOAN FUNDING PST 2 LLC,
	as a Lender
	By: Citibank N.A.


	By:	/s/ Cynthia Gonzalvo
		Name: Cynthia Gonzalvo
		Title: Associate Director


	CITI LOAN FUNDING PST 3 LLC,
	as a Lender
	By: Citibank N.A.


	By:	/s/ Joyce Kim
		Name: Joyce Kim
		Title: Associate Director

[Signature Page to Consent]

	CITI LOAN FUNDING PST 4 LLC,
	as a Lender
	By: Citibank N.A.


	By:	/s/ Joyce Kim
		Name: Joyce Kim
		Title: Associate Director


	CITI LOAN FUNDING PST 5 LLC,
	as a Lender
	By: Citibank N.A.


	By:	/s/ Joyce Kim
		Name: Joyce Kim
		Title: Associate Director


	CITIZENS BANK, N.A.,
	as a Lender


	By:	/s/ Gary Hatfield
		Name: Gary Hatfield
		Title: Senior Vice President

[Signature Page to Consent]

	DEUTSCHE BANK AG NEW YORK BRANCH,
	as a Lender


	By:	/s/ Michael Strobel
		Name: Michael Strobel
		Title: Vice President

	By:	/s/ Yumi Okabe
		Name: Yumi Okabe
		Title: Vice President


	FIFTH THIRD BANK,
	as a Lender


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


	JPMORGAN CHASE BANK, N.A.,
	as a Lender


	By:	/s/ Bruce S. Borden
		Name: Bruce S. Borden
		Title: Executive Director


	KEYBANK, NATIONAL ASSOCIATION,
	as a Lender


	By:	/s/ Neil C. Buitenhuys
		Name: Neil C. Buitenhuys
		Title: Senior Vice President

[Signature Page to Consent]

	MUFG BANK, LTD.,
	as a Lender


	By:	/s/ Liwei Liu
		Name: Liwei Liu
		Title: Vice President


	MUFG UNION BANK, N.A.,
	as a Lender


	By:	/s/ Liwei Liu
		Name: Liwei Liu
		Title: Vice President


	REGIONS BANK,
	as a Lender


	By:	/s/ Bruce Rudolph
		Name: Bruce Rudolph
		Title: Director


	SANTANDER BANK, N.A.,
	as a Lender


	By:	/s/ David Harnisch
		Name: David Harnisch
		Title: Executive Vice President

[Signature Page to Consent]

	SUNTRUST BANK,
	as a Lender


	By:	/s/ David Bennett
		Name: David Bennett
		Title: Director


	VIRTUS NEWFLEET DYNAMIC CREDIT ETF,
	as a Lender


	By:	/s/ Kyle Jennings
		Name: Kyle Jennings
		Title: Managing Director


	WEBSTER BANK, N.A.,
	as a Lender


	By:	/s/ Mathew L. Coyne
		Name: Mathew L. Coyne
		Title: Vice President


	WELLS FARGO BANK, N.A.,
	as Lender


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

[Signature Page to Consent]